# • .A ·C :£ RAJA ANA~D BRAHMA SHAH v. STATE OF UTTAR PRADESH & ORS

- **Citation:** [1967] 1 S.C.R. 373
- **Court:** Supreme Court of India
- **Decided:** 1966-09-16
- **Bench:** K. Subba Rao, M. Hidayatullah, S. M. Sijibi, V. Ramaswami A'.Nd J.M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-c-raja-ana-d-brahma-shah-v-state-of-uttar-pradesh-ors-3834
- **Pages:** 19

## Headnote

Land Acquisition Act (I of 1894), ss. 4, SA, 6, 17(1) and (4)-
Declaratlon that land acquired for /tUblic purpose-When can be challenged-"Arab/e and waste land", what WC-Power of Government under
s. 11(4)-When liable to .challenge-Grantee of land-Right' to minerals
and subsoil rights.
.
In !9SO, the State Government issued a notification under s. 4(1) of
the Land Acquisition Act, 1894 stating that the appellant's land was needed for the public purpose of limestone quarrying. It was also notified that
the case was one of urgency and that under s. 17 ( 4) the provisions of
s. SA would not apply to \he land. After the notification under s. 6 was
issued, the Collector was ordered under s. 17 (I)
to take possession of
the arable and waste land. The Collector took possession ·of the appellant's
land. The limestone quarried from the land was utilized by the Government
for producing cement, the cement produced was used in the construction
of a darn, and when it was sold for profit,
the profit formed part of
the general revenues of the State. The acquisition proceedings were challenged by a writ petition on the grounds~, that : ( i) the acquisition was not
for a public purpose, because, the cement Was sold for profir; (ii) the
application of s. 17 (I) and ( 4) to the land was illegal since it was neither
waste nor arable; and (iii) the appellant was entitled to compensation for
Sllb-soil mines and minerals. The High Court dismissed the, petition.
In appeal,
HELD: (i) The appellant's argument must be rejected as .he was not
·able to show that the action of the Government in issuing the notification
under s. 6 was a colourable exercise of power. [377 C-D]
~I
The declaration of the Government under s. 6(1) that the land was
needed for a public putpose would be final and conclusive, except when
there was a colourable exercise of the power by the Government in that
the purpose was not a public purpose, but a p·rivate purpose or no purpose
at all.
(376 HJ
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Smt. Somavanti v. The State of Punjab, [1963] 2_ S.C.R. 774, followed.
· fthe question whether production of cement as a commercial enterprise is a public purpose within the meaning of the Act was left open.
1377 B-CJ
(ii) (a) The direction of the State Government under s. 17(1), and
the action of the Collector in taking possession of the land under that sub-
~ection were ultra vires, because, the acquired land was forest land covered
with a large number of trees, and not "arable or waste land." [380 Fl
In the context of s. 17(1) the expression "arable land'' must be- construed to mean "lands which are· mainly used for ploughing and for raising
crops," and the expression "waste land" would mean "land which is UDftt
373
374
SUPREME COURT
REPORTS
(1967] l S.C.R.
for cultivation or habitation, desolate and barren land with little or no
A
vegetation thereon." The jurisdiction of the State Government depends upon
the condition imposed by s. 17 (I). and by wrongly deciding the character
of the land the State Government cannot give itself jurisdiction to give a
direction to the Collector to take possession of it. Where the jurisdiction
of an administrative authority depends upon a preliminary finding of fact,
the High Court is entitled in a proceeding for the issue of a writ of cmlorari to determine, upon its independent judgment,, whether or not that
B
finding of fact is correct. [380 A·E]
( b) The order of the State Government under 1. 17 ( '4) that the pre>-
visions of s. SA were not applicable to the land was illegal, and therefore,
the notification of the Slate Government under s. 6 was ultra viru, and all
proceedings taken by the Land Acquisition Officer subsequent to it wero
without jurisdiction.
[381 F; 383 A-Bl
E\'en though the power of the Stato Government has been formulated
C
under s. 17(4) in subjective terms, the expression of opinion of the State
Government can be challenged as ultra vires in a court of law if it could
be shown that the Sla(e Government never applied its mind t

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RAJA ANA~D BRAHMA SHAH
v.
STATE OF UTTAR PRADESH & ORS.
September 16, 1966
[K. SUBBA RAO, C. J., M. HIDAYATULLAH, S. M. SIJIBI,
V. RAMASWAMI A'.ND J.M. SHELAT, JJ.j
Land Acquisition Act (I of 1894), ss. 4, SA, 6, 17(1) and (4)-
Declaratlon that land acquired for /tUblic purpose-When can be challenged-"Arab/e and waste land", what WC-Power of Government under
s. 11(4)-When liable to .challenge-Grantee of land-Right' to minerals
and subsoil rights.
.
In !9SO, the State Government issued a notification under s. 4(1) of
the Land Acquisition Act, 1894 stating that the appellant's land was needed for the public purpose of limestone quarrying. It was also notified that
the case was one of urgency and that under s. 17 ( 4) the provisions of
s. SA would not apply to \he land. After the notification under s. 6 was
issued, the Collector was ordered under s. 17 (I)
to take possession of
the arable and waste land. The Collector took possession ·of the appellant's
land. The limestone quarried from the land was utilized by the Government
for producing cement, the cement produced was used in the construction
of a darn, and when it was sold for profit,
the profit formed part of
the general revenues of the State. The acquisition proceedings were challenged by a writ petition on the grounds~, that : ( i) the acquisition was not
for a public purpose, because, the cement Was sold for profir; (ii) the
application of s. 17 (I) and ( 4) to the land was illegal since it was neither
waste nor arable; and (iii) the appellant was entitled to compensation for
Sllb-soil mines and minerals. The High Court dismissed the, petition.
In appeal,
HELD: (i) The appellant's argument must be rejected as .he was not
·able to show that the action of the Government in issuing the notification
under s. 6 was a colourable exercise of power. [377 C-D]
~I
The declaration of the Government under s. 6(1) that the land was
needed for a public putpose would be final and conclusive, except when
there was a colourable exercise of the power by the Government in that
the purpose was not a public purpose, but a p·rivate purpose or no purpose
at all.
(376 HJ
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Smt. Somavanti v. The State of Punjab, [1963] 2_ S.C.R. 774, followed.
· fthe question whether production of cement as a commercial enterprise is a public purpose within the meaning of the Act was left open.
1377 B-CJ
(ii) (a) The direction of the State Government under s. 17(1), and
the action of the Collector in taking possession of the land under that sub-
~ection were ultra vires, because, the acquired land was forest land covered
with a large number of trees, and not "arable or waste land." [380 Fl
In the context of s. 17(1) the expression "arable land'' must be- construed to mean "lands which are· mainly used for ploughing and for raising
crops," and the expression "waste land" would mean "land which is UDftt
373
374
SUPREME COURT
REPORTS
(1967] l S.C.R.
for cultivation or habitation, desolate and barren land with little or no
A
vegetation thereon." The jurisdiction of the State Government depends upon
the condition imposed by s. 17 (I). and by wrongly deciding the character
of the land the State Government cannot give itself jurisdiction to give a
direction to the Collector to take possession of it. Where the jurisdiction
of an administrative authority depends upon a preliminary finding of fact,
the High Court is entitled in a proceeding for the issue of a writ of cmlorari to determine, upon its independent judgment,, whether or not that
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finding of fact is correct. [380 A·E]
( b) The order of the State Government under 1. 17 ( '4) that the pre>-
visions of s. SA were not applicable to the land was illegal, and therefore,
the notification of the Slate Government under s. 6 was ultra viru, and all
proceedings taken by the Land Acquisition Officer subsequent to it wero
without jurisdiction.
[381 F; 383 A-Bl
E\'en though the power of the Stato Government has been formulated
C
under s. 17(4) in subjective terms, the expression of opinion of the State
Government can be challenged as ultra vires in a court of law if it could
be shown that the Sla(e Government never applied its mind to the matter,
or, that the action of the State Government was ma/a fide.
Therefore,
when the acquired land was not actually waste or arable land. but
the
State Government formed the opinion that the. provisions of s. 17 (I) were
applicable, the coun may draw the inference that the State Go~ernment
did not honestly form that opinion, or did not apply its mind to the relevant
D
facts.
[381 D-F)
(iii) The appellant was tho owner of all minerals and su~il ri&bta
and was therefore entitled to compensation for the minerals including limestone.
[390 DJ
A transfer of the right to the surface conveys a right to the ~als
underneath, Wlless there is an express or implied re.ervation in the cn111t.
In the instant case there was no reservation of mineral rights in favour
of the Government, in the two sanads granting the land to the anre;tor of
the appellant.
The land of which the acquired land formed part was permanently settled undenbe provisions of the Benares Regulation I of 1795.
There was no material difference between the permanent settlement of
BC!llares province and that of the provinces of Bengal, Bihar and Ori5'1a
and und<T the latter, tho proprietors of estates were recognised to be tbe
proprietors of the soil also.
The fact that the assessment to be paid by
the grantee was made on the agricultural income cannot deroaate from
the rights conveyed to the grantee, because, no restricion was placed on
the use of the la'nd ~nd the use by the grantee was not limited to agriculture.
Moreo\'er, Government never asserted its' claim to miner&I riEfii.
pa!8eSSod by the Zamindars. Even the Mirzapur Stone Mahal Act, 1886,
and tho Rules framed thereunder, were meant only for regulating tho
quarrying of building stone and were not meant to atrect the right of tho
propnetors to the sub-soil minerals.
[385 G; 386 A-B; 387 F-0; 388 H;
390 Fl
CIVIL APPELLATF kRISD!CTION :
Civil Appeal No. 656 of
1964.
Appeal from the
judgment and decree dated November
2, 1962 of the Allahabad High Court in Civil Misc. Writ No. 454 of
1955.
B. R. L. Iyengar, S. K. Mehta, V. P. Misra and K. L. Mehta.
for the appellant.
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RAJA ANAND v. u. P. STATE (Ramaswam/, J.)
375
.
C. K. Daphtary,
Attorney-General,
Shanti-Bhushan Addi.
Advocate-General, U.P. and.O. P. Rana, for respondents Nos.
I and 2.
·
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, against
the judgment of the Allahabad High Court dated November 2, 1962
dismissing the writ petition No. 454 of 1955 filed by the appellant~
Raja Anand Brahma.Shah.
_The appellant was the Zamindar of Pargana Agori lying to the
south of Kaimur Range in the district of Mirzapur. On October 4,
1950, a notification was issued by the State Government under
s. 4(a) of the Land Acquisition Act (hereinafter referred to as the
''Act") stating that the area of 409 ·6 acres.in the village of Markundi Ghurma Pargana Agori was needed for a public purpose.
The purpose specified in the notification was "for limestone quarry".
The notification provided that the case being one of urgency, the
provisions of sub-section (1) of s. 17 of the Act applied to the land
and it was therefore .directed under sub-s. ( 4) of s. 17 that the
provisions of s. SA of the Act would not apply to the land. On
October 12, 1950, a further notification was issued under s. 6 of the
Act declaring that the Governor was satisfied that the land mentioned
in the notification was needed for public purposes and
directing the Collector of Mirzapur to take order for acquisition
of the land under s. 7 of the Act. The Collector of Mirzapur was
further directed by the notification under s. 17(1) of the Act, the
case being one of
urgency, to take possession of any waste or
arable land on the expiration of the notice mentioned in s. 9(1 )>
though no award under s. 11 had been made. On November 19
1950, possession of the land was taken by the Collector of Mirzapu;
and the same was handed over to the Administrative Officer,
Government Cement Factory, Churk. An award was made by
the Land Acquisition Officer on January 7, 1952 stating that the
amount of compensation was Rs. 23,638/13/7.
The appellant
thereafter filed an application under s. 18 of the Act for a reference
to the Civil Court in regard to the amount of compensation payable.
A reference to the Civil Court was accordingly made and the matter
is still pending in the Civil Court as Land Acquisition Reference
No. 4 of 1952.
On May 2, 1955, the Writ Petition giving rise to
this appeal was filed by the appellant in the Allahabad High Court.
It is alleged by the appellant that the acquisition of the land was
not for a _public purpose and. the acquisition proceedings were -
consequently without jurisdiction. It was
also stated that the
State Government had no jurisdiction to apply the provisions of
s. 17(1) of the Act to the land in dispute as it was neither waste
nor arable land. It was further claimed that the mines and minerals
in the land belonged to the appellant and as such he was entitled
376
SUPREME COURT REPORTS
[1967] I S.C.R.
to compensation for the same. The appellant accordingly prayed for
a writ in the nature of certiorari to quash the notifications of the
State Government under s. 4 and s. 6 of the Act and all further
proceedings in pursuance of that notice in the land acquisition case.
The appellant also prayed that the Stale Government should be
directed to pay compensation to the appellant for all ihe lime-stone
removed from the land.
By its judgment dated November 2, 1962
the High Court dismissed the Writ Petition, holding (I) that. the
petitioner was not the owner of mines and minerals and was not
entitled to compensation for them, (2) that the land had been acquired
for a public purpose, and (3) that the provisions of s. 17 of the Act
were applicable to the case and there was no illegality in the notifications of the State Government under s. 4 and s. 6 of the Act.
The first question to be considered is whether the notification
of the State Government under s. 4 of the Act dated October 4, 1950
is liable to be quashed on the ground that the acquisition of the
land was not for a public purpose. It was alleged for the appellant
that the lime-stone extracted from quarries situated in the land was
used
by the State Government for the manufacture of cement
which was sold for profit in open market and was not used for
any public work of construction.
It was contended that the
manufacture of cement for being sold for profit will not amount
to a public purpose and the notification of the State Government
under s. 4 of the Act must therefore be held to be illegal.
In our
opinirm, the argument put forward on behalf of the appellant
cannot be accepted. It is manifest that the declaration made by
the State Government in the notification under s. 6( I) of the Act,
that the land was required for a public purpose, is made conclusive
by sub-s. (3) of s. 6 and it is, therefore, not open to a court to go
behind it and try to satisfy itself whether in fact the acquisition was
for a public purpose. It was pointed out by this Court in Smt.
Somara11ti v. The State of Punjab(,1) that it was for the Government to be satisfied, in a particular case, that the purpose for which
the land was needed was a public purpose and the declaration of
the Government under s. 6(1) of the Act will be final subject, however,
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to one exception, namely in the case of colourable exercise of the
power, the.declaration is open to challenge at the instance of the
aggrieved party.
The power conferred on the Government by the
Act is a limited power in \he sense that it can be exercised only
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where it is for a public purpose (leaving aside, for the moment,
where the acquisition is for a company under Part VII of the Act).
If it appears that what the Government is satisfied about is not a
public purpose but a private purpose or no purpose at all, the
action of the Government would be colourable as being outside
the power conferred upon it by the Act and its declaration under
s. 6 of the Act will be a nullity.
On behalf of the respondents
the argument wa~ strc5sed that the lime-stone was utilised for being
(I)Ti96JJ (2) S.C.R. 774.
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RAJA ANAND v. U.P. STATE (Ramaswami, J.)
377
used in the cement factory established in the Public Sector at
Churk. It was argued that the production of cement was important
in national interest, particularly when the cement was used .in the·
construction of the Rihand dam. ' It is conceded on behalf of the
respondents that the allegation of the appellant that cement was
being sold in market for profit was not clearly controverted by the·
counter-affidavit by the State but it was said that even on the
assumption that the cement was sold for profit the use of the limestone in the production of the cement was in public interest, because
the profit from the sale of cement benefited the General Revenues
of the State. It is not necessary for us to express any concluded
opinion as to whether the production of cement as a
comm~rcial
enterprise is a public purpose within the meaning of the Act for we
consider that the principle of the decision of this Court in Smt.
Somavanti v. The State of Punjab (1) applies to this case and the
argument of the appellant must be rejected because he has not been
able to show that the action of the Government in issuing the
notification under s. 6 of the Act is a colourable exercise of power.
We then proceed to consider the argument ot the appellant that
the notification under s. 4 of the Act is illegal Since the land in dispute is neither waste nor arable. land and the jurisdiction of the
State Government to act under s. 17(1) and s. 17( 4) of the Act
depends upon the preliminary condition that the land to be acquired
is waste or · arable land, The argument was stressed that since the
jurisdiction of the State Government depends upon the preliminary
finding of fact that the land is waste or arable, the High Court is
entitled, in a proceeding for a writ of certiorari, to determine,
upon ~ts independent judgment, whether or not that finding of
fact is correct. It is necessary, at this stage, to set out the relevant
provisions of the Act. Section 4(1) of the Act states:
"4.(1) Whenever it appears to the 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. 8ubstance of
such notification to be given a,t convenient places in the said
locality."
Section SA provides for the hearing of objections and reads:
"SA. (1) Any person iI\terested in any land which has
been notified under section 4, sub-section (I), as being
needed or likely to be neeoed for a public purpose or for
a Company may, within thirty days after the issue of the
notification, object to the acquisition of the land or of any
land in the locality, as the case may be.
(I) [1963] 2 S.C.R. 774.
378
SUPRBMB COURT REPORTS
[1967) l S.C.ll.
(2) Every objection under sub-section (I) shall be made
A
to the CollectQr in writing, and the Collector shall give
the
objector an opportunity of being heard either in
person or by pleader and shall, after hearing all such
objections and after making such further inquiry, if any,
as he thinks necessary, submit the case for the decision,
of the appropriate Government, together with the record
B
of the proceedings held by him and a report containing
his recommendations on the objections. The
decision
of the appropriate Government on the objections shall be
final.
"
'Section 6 provides:
"6. (I) Subject to the provisions of Part VII of this
Act when the appropriate Government is satisfied, after
considering the report, if any, made under section 5A, subsection (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 authorised to certify
its orders:
Provided that no such declaration shall be made unless
the compensation to be awarded for such property is to be
paid by a Company, or wholly or partly out of public
revenues or some fund controlled or managed by a local
.authority.
(2) The declaration shall be published in the Official
-Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is
needed, its approximate area, and, where a plan shall have
been made of the land, the place where such plarr may be
inspected.
(3) The said declaration shall be conclusive evidence
that the land is needed for a public purpose or for a Comc
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pany, as the case may be; and, after making such declaraG
tion the appropriate Government may acquire the land in
manner hereinafter appearing."
Section 16 relates to the power of the Collector to take possession of the land. It reads:
"16. When the Collector has made an award under
section 11, he may take possession of the land, which shall
thereupon vest absolutely in the Government, free from
all encumbrances."
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RAJA ANAND v. U.P. STATE (Ramaswami, J.)
37 9
Section 17 confers special powers in cases of urgency and reads
as follows:
"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), take possession of llny 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 ghat 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 (I) and with the previous
sanction of the appropriate Government, enter upon and
take possession of such land, which shall thereupon vest
absolutely ir. the Government free from all encumbrances:
(3) In the case of any land to which, in the opinion
of the appropriate Government, the provisions of subsection (1) or sub-section (2) are applicable, the appropriate
Government may direct that the provisions of section SA
shall not apply, and, if it does so direct, a declaration may
be made under section 6 in respect of the lan<l at any time
after the publication of the notification under section 4, subsection (!)."
On behalf of the appellant Mr. Iyengar referred to the Inspection Note of the Collector dated December, 15, 1951 at page 91
of the Paper Book. It was pointed out that the· Collector noticed
that there were one lat: of-trees in the acquired land and there were·
trees of "Tendu, Asan, Sidh,
Bijaisal, Khair, bamboo clumpe,
Mahuwa and Kakora contained in the area." It was contended
that '1te land in dispute was "forest land" covered by a large number
of troes and cannot be treated as "waste land or arable land" within
s. 17(1) or (4) of the Act. In our opinion, the argument p•t forward on behalf of the appellant is well-founded and must be·
accepted as correct and in view of the facts mentioned in the affidavia
and in the Inspection Note of the Collector dated December 15,
1961 we are of the opinion that the land sought to be acquired is
Ml 5Sup.Cl/66-Jl
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380
SUPREME COURT
REPORTS
[1967] I S.C.R.
not "waste land" or "arable land" within the meaning of s. 17(1) or
( 4)
of the Act. According to the Oxford Dictionary "arable
land" is "land which is capable of being ploughod or fit for tillage."
In the context of s. 17( 1) of the Act the expression must be construed
to mean "lands which are mainly used for ploughing and for raising
crops" and therefore the land acquired in this case is not arable
land. Similarly, the expression "waste land" also will not apply to
'forest land'.
According to the Oxford Dictionary the expression
"waste" is defined as follows:
"Wastc-(from Latin. vastus-waste, desert, unoccupied;
Uncultivated,
incapable
of
cultivation
or
habitation;
producing little or no vegetation; barren, desert."
The expression "waste land" as contrasted to "arable land" would
therefore mean "land which is unfit for cultivation or habitation,
desolate and barren land with little or no vegetation thereon." It
follows therefore that s. 17( I) of the Act is not attracted to the
present case and the State Government had therefore no authority
to give a direction to the Collector to take possession of the lands
under s. 17(1) of the Act. In our opinion, the condition imposed by
s. 17(1) is a condition upon which the jurisdiction of the State
Government depends and it is obvious that by wrongly deciding the
question as to the character of the land the State Government
Qllnot give itself jurisdiction to give a direction to the Collector to
take possession of the land under s. 17(1) of the Act. It is wellestablished that where the jurisdiction of an administrative authority
depends upon a preliminary finding of fact the High Court is
entitled, in a proceeding of writ of certiorari to determine, upon its
independent judgment, whether or not that finding of fact is correct
[See R. V. Shoreditch Assessmenl Committee( .. ) and White and
Collins v. Minister of Health(1).]
We are accordingly of the opinion that the direction of the
State Government under s. 17(1) and the action of the Collector in
taking possession of the land undet that sub-section is ultra Pirq.
It was also contended for the appellant that the order of the
State Government under s. 17(4) of the Act that the provisions of
s. SA of the Act were not applicable. to the land was illegal beca111C
the land was not waste or arable land to which the provisions of L
17(1) were applicable. It was urged that by issuing the impuliocd
notification the State Gove11111lent deprived the appellant of a
valuable right i.e., of filing an objection under s. SA of tho Act
and therefore the entire proceedings taken by the Land Acquisition Officer after the issue of the notification under s. 4 were defectiYe
in law. On behalf of the respondents the submission was made
that the condition precedent for the application ofs. 17 ( 4) of the
(I) (1910) 2 K.B. 159.
(2) (1939) 2 K.B. 131.
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RAJA ANAND V. U.P. STATE (Ramaswami, J.)
38 I
Act was the subjective opinion of the State Government that the
provisions of sub-s. (!) are applicable to the land in question.
If therefore the State Government had come to the conclusion that
the provisions of sub-s. (I) were applicable to the land because the
land was waste or arable land, the subjective opinion of the State
Government cannot be challenged in a court of law except on the
ground of colourable exercise of power. It was also contended
that the declaration of the State Government in the impugned
notification that in its opinion the provisions of sub-s. (1) are
applicable, must be taken as normally conclusive.
It is true that the opinion of the State Government whkr is a.
condition for the exercise of the power under s. 17( 4) of the Act, is
subjective and a Court cannot normally enquire whether there
were sufficient grounds or justification for the opinion f9rmed by
the State Government under s. 17( 4). The legal position has been
explained by the Judicial Committee in King Emperor v. Shibnath
Banerjee(')
and by this Court in a recent case-Jaichand Lal
Sethia v. State of West Bengal & Ors.(2) But even though the
power of the State Government has been formulated under s. 17( 4)
of the Act in subjective terms the expression of opinion of the State
Government can be challenged as altra vires in a Court of Law if it
could be shown that the Stat~ Government never applied its mind
to the matter or that the action of the State Government is malafide.
If therefore in a case the land under acquisition is not actually
waste or arable land but the State Government has formed the
opinion that the provisions of sub-s. (I) of s. 17 are applicable, the
Court may.legitimately draw an inference that the State Government
did not honestly form that opinion or that in forming that opinion
the State Government did not apply its mind to the relennt facts
bearing on the question at issue. It follows therefore that the
notification of the State Government under s. 17( 4) of the Act
directing that the provisions of s. SA shall not apply to the land is
ultra vires. The view that we have expressed is borne out by the
decision of the Judicial Committee ~n Estat« and Trust Agencies lid.
v. Singapore lmproremenrTrust(') in whieh a declaration made by
the Improvement Trust of Singapore under s. 57 of the Singapore
Improvement Ordinance 1927 that the.appellants' property was in ai;i
insanitary condition and therefor• liable to be demolished was
challenged. Section 57 of the Ordinance stated as follows:
"57. Whenever it appears to the Board that within its
administrative area any building which is used or is intended or is likely to be used as a dwelling place is of such a
construction or is in such a condition as to be unfit for
H
(l} 72 LA. 241.
(2) Criminal Appeal No. 110 of 1966-decided on July 27, 1966. (1966) S~.
S.C.R.
(3)[1937} A.C. 898.
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SUPREME COURT REPORTS
[1967) I S.C.R.
human habitation, the Board may by resolution declare
such building to be insanitary".
The Judicial Committee set aside the declaration of the Improvement
Trust on two grounds; (I) that though it was made in exercise of an
administrative function and in good faith, the power was limited
by the terms of the said Ordinance ana therefore the declaration
was liable to a challenge if the authority stepped beyond those terms
a'.ld (2) that the ground on which it was made was other than the
one set out in the Ordinance. In another case-Ross Clu11is v.
Papadoporllos(l)-the appellant challenged an order of collective
fine passed under Regulation 3 of the Cyprus Emergency Powers
(Collective Punishment)
Regulations, 1955 which provided that
if an offence was committed within any area of the colony and the
Commissioner "has reason to believe" that all or any of the inhabitants of that area failed to take reasonable steps to prevent it and
to render assistan.cc to discover the offender or offenders it would
be lawful for the Commissioner with the approval of the Governor
to levy a collective fine after holding an inquiry in such manner
as he thinks proper subject to satisfying himself that the inhabitants
of the area had been given an adequate opportunity of understanding the subject-matter of the inquiry and making representations thereon. It was contended on behalf of the appellant that the
only duty cast on the Commissioner was to satisfy himself of the
facts set out in the Regulation, that the test was a subjective one
and that the statement as to the satisfaction in his affidavit was a
complete answer to the contention of the respondents.
In rejecting
the cont.ention the Judicial Committee observed as follows:
"Their Lordships feel the force of this argument, but
they think that if it could be shown that there were no
grounds upon which the Commissioner could be so satisfied.
a court might infer either that he did not honestly form that
view or that in forming it he could not have applied his
mind to the relevant facts."
Jn another case-R. V. Australian Ste1•edori11g Industry Board(')--
the High Court of Australia was called upon to review the cond11ct of a board empowered to cancel the registration of an employer
of dock labour if "satisfied" that he was unfit to be registered or
had so acted as to interfere with the proper performance of stevedoring work.
It was held by the High Court that it was entitled
to award prohibition against the board if the board was acting
without any evidence to support the facts upon which.its jurisdiction deoeoded, or if it was adopting an erroneous test of the
emplo)er"s liability to cancellation of his
registration, or if it
appeared likely to go outside the scope of its statutory discretion.
-·--
(I) {t951\ I W.L.R. 546.
(2) (19l2) ~8 C.L.R. 100.
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RA.TA ANAND v. U.P. STATE (Ramaswami, J.)
383
We accordingly hold that the appellant has made good his
submission on this aspect of the case and the notification of the
State Government under s. 6 of (he Act dated October 12, 1950
is ultra vires and therefore all the proceedings taken by the Land
Acquisition Officer subsequent to the issue of the notification under
s. 6 must be held to be illegal and without jurisdiction.
We shall pass now to consider the question whether the appellant had sub-soil and mineral rights in the areas in dispute and
whether the appallant was entitled to compensation for the minerals
including lime-stone in that area.
It is necessary to set out at this stage the history of Agori
Zamindari. The ancestors of Raja Anand Brahma Shah had
owned the paraganas of Agori and Barbar since the 13th century.
About the year 1744 A.D. Shambhu Shah the then Raja was driven
out of his domains by Raja Balwant Singh of Banaras, but after
about 30 years Adil Shah, grandson of Shambhu Shah was able
to regain possession ovyr the territories after driving out Raja
Chet Singh, son of Raja Balwant Singh, with the help of the
British East India Company. On October 9, 1781, Raja Adil Shah
was granted a Sanad by Mr. Warren Hastings the· then Governor
General of India restoring to him the Zamindari of Pargana Agori
and Pargana Barbar with all the rights which his ancestors had
before Shambhu Shah was driven out of his domains.
By a second
Sanad dated October 15, 1781 the Raja was granted a Jagi,rultamgha
of certain Mahals including Pargana Agori in lieu of Rs. 8,001/-
per annum. It was stated for the respondent-State that the second
sanad was cancelled by a resolution of the Governor in Council
dated April, 1788. But a third sanad was executed in favour of the
Raja on December 10, 1803 granting the whole Jagir permanently
and making the Raja "immovable Jagirciar of Mahal and everything appertaining thereto to belong to him."
On behalf of the appellant reference was made to the sanad
granted by Mr. Warren Hastings dated October 9, 1781 by which the
Pargana of Agori was restored to Raja Adil Shah with all ancient
and former rights in the Raj. The Sanad reads as follows:
"Know ye the present and future
mutsuddies,
Zamindars Chowdharies, canoogoes, Residents, Mahtees,
ryots, cultivators and other inhabitants of pargunnah
ageuree Burhas in the Sirkar of Chunnar, Soubah of
Behar, that in consequences of the service of Lal Adil
Shah. in favour of the Hon'ble Company three Lacs and
forty thousand drums which amounts to eight thousand and
one rupees per annum, is granted to him as an Ultumgah
jagger from the
Kharief 'Illegible' Fussley year 1189
together with the mohala, sayar rukbah, plains or meadows
thereof and exclusive of the deotter, Bhrmotter, Krishuarpen
38 4
SUPRl!MI! COURT
Jl?POllTS
[1967J l S.C.R.
lands, places of worship habitations of Brahmans, and
faquire and the Aymah, Mauffy and nomooly free rent
free lands that he the said Adil Singh having the welfare of
Government constantly in view, is to appropriate the produce thereof to his own use, year after year to be ever
prompt to secure and promote the prosperity of the Hon· -
ble Company to attend and on no account be inattentive to
the police, keep contented and satisfied all the Ryots, inhabitants and residents of the said Mahal to study and advance
the welfare of the inhabitants to effect the Augmentation of
cultivation of the whole Perganah.
Be it known to you Adil Singh Zamindar of Parganah
Agori as it appears from your statement that the above
Parganah is your ancient and hereditary estate and that
some years ago Raja Balwant Singh forcibly dispossessed
you and took possession of it himself. On a view therefore
of your ancient right the Purganah is restored to you and
you arc required to bring it into cultivation obeying the
orders of the Aumil and having the interest of Raja Mahipat
Narain constantly in view. There in fail not dated 20th
Shawaul 1195 Hidgree or the October 1781 E.E.".
The appellant further relied upon the Sanad dated December l(,i
1803 which confinned all the rights granted in the 1781 Sanad and
made the grant in perpetuity. The Sanad appears on page 79 of the
Paper Hook and reads as follows:
"Know, ye, the present and future Mutsuddies in office:
the zamindars, the chowdhuries, the
Resident~, the Mahtoos, the Ryots, the cultivators, and the inhabitants of
Agori Barhar of Sirkar Chunar in subah Allahabad, that
in confonnity to the orders of His Excellency the most
Noble Richard Marquis Wellesley, Knight of the Illustrious
order of Saint
Patrick, Governor General in
Council issued on the 4th November 1803 on a consideration of the good services rendered to the Hon 'ble Company by Raja Run Bahadur Shah, and his conseq·uent
merits, lands in the above Purgunnah producing Rs. 4,000/-
to form a Jagir of three lacs twenty thousands and forty
dams which
make eight thousand and one rupees per
annum, as hereunder particularized of which a jagir of
4,001 rupees continues in the possession of the said
Rajah
Run
Bahadur
Shah
agreeably to
sanad
dated 7th October, I 789, English Era, have been given
to him the said Rajah as an ultumgah Jagger, from the
Fussul Khareef of the fasli year 1211, corresponding with
the English era 1803, together with the maul, Suyer,
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RAJA ANAND v. U.P. STATE (Ramaswami, J.)
385
Ruchbah, plains or meadows thereof, and exclusive of
Deuuttar, Burmotter and Krishnarpur lands
places of
worship, habitations of Brahmans and Faquirs, ayumah,
maufy, mamully etc., rent free lands, that the said Rajah is
to appropriate the produce of the aforementioned jageer
to his own use year after year, to be ever prompt to secure and
promote the prosperity of the Hon'ble Company to attend
strictly and conform to the rules and customs of Jagirs,
to be on no account in-attentive to, or neglectful of the
police, to keep content and satisfied by good treatment, all
the Ryots inhabitants, and residents of the said mahals
to study and advance that the welfare of the inhabitants
of the place to exert effectually and augment the cultivation
of the whole pergana.
That you are to consider him the Rajah, immovable
j agerdar of the mahal and every thing appertaining therctto, to belong to him be interested in his welfare and not
demand on new sanad annually herein fail not but conform to the injunctions above given within the I !th day of
the month of Poos 1211 Fussly; Corresponding with the
English era 1803.
Endorsement
Of the hereunder particularized Jagir, perganah Agori
Burhar, producing Three lacs, twenty thousand and forty
which make eight thousand
and one rupee annually.
Without fluctuations, land producing four thousand one
rupee is already in the possession of Rajah Run Bahadur
Shah agreeably to a Sanad dated 7th October 1789 and the
remaining jageer of 4 thousand rupees have been already
given and granted to him from the year 1211 Fussly together
with the Raqbah plains' meadows, and jungles thereof as
an ultamagh jageer. Total villages 209 producing 8001
rupees."
In our opinion, a reading of the two Sanads supports the
case of the appellant that there is no reservation of mineral rights
in favour of the Government. The expression used in the Sanad
of 1803 A.D. is "You ought to consider him the Raja of immovable
Jagir and of Mahal and everything appertaining thereto belong'
to him." In effect, the grant to the Raja in the two Sanads is a
grant of the lands comprised in the Mahal of Agori and everything
appertaining thereto and as a matter of construction the grant
must be taken to be not only of the land but also of everything
beneath or within the land. Prima facie the owner of a surface of
he land is entitled ex jure to everything beneath the land and in the
386
SUPllME COURT REPORTS
(1967] I S.C.R.
absence of any reservation in the grant minerals necessarily pass
with the rights t.o the surface (Halsbury's Laws of England, 3rd
Edn., Vol. 26, p. 325). In other words, a transfer of the right
to the surface conveys right to the minerals underneath unless
there is an express or implied
reservation in the grant.
A
contract therefore to sell or grant a lease of land will generally
include mines, quarries and minerals beneath or within it (Mitchell
v. Mosley(_').
It is manifest that when the sanad was executed in
favour of the Raja the Government made over the land with all its
capabilities to the Raja and merely imposed on him a fixed sum of
revenue in lieu of all the rights the Government had as a proprietor
of the soil.
When neither of the parties knew undiscovered minerals
underneath the land and the idea of reservation never entered
their minds it cannot be held that there was any implied reservation
in the grant.
Nor can afterwards a distinction be drawn between
the various rights that may exist on the land for the purpose of qualifying the original grant and importing into it what neither party
could have imagined. It was argued on behalf of the respondents
that the assessment was made on the agricultural income, but this
circumstance cannot derogate from the
rights conveyed to
the Raja in the two Sanads because no restriction was placed on
the use of the land and the use by the Raja was not limited to
agriculture.
The view that "c have expressed as to the interpretation and
the legal effect of the Sanads is supported by Regulation VIII of
1793 which re-enacted with modifications and amendments the
Rules for the Decennial Settlement of the public revenue payable
from the lands of the zemindars, independent talukdars, and other
actual proprietors of land in Bengal, Bihar and Orissa.
Section
JV of this Regulation provided that the settlement, under certain
restrictions and exceptions specified in the Regulation, shall be
concluded with the actual proprietors of the soil, of whatever
denomination, whether zemindars, talukdars or chaudhris. It is
clear that the zemindars with whom settlement took place, were
recognised as the actual proprietors of the soil. The settlement of
revenue so made was made permanent by s. IV of Regulation I
of I 793. This Regulation enacted certain Articles of a Proclamation
dated March 22, 1793. Section I of this Regulation states that the
various articles of the Proclamation were enacted into a Regulation
and that those articles related to the limitation of public demand
upon the lands, addressed by the Governor-General in Council
to the zemindars, independent tfllukdars and other actual proprietors of land paying revenue to Government in the Provint;ej; of
Bengal, Bihar and Orissa.
By Section IV it was declared to the
zemindars, independent talukdars and other actual proprietors of
land, with or on behalf of whom a settlement had been concluded
(I)
[1914) t Ch. 438, 4SO.
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RAJA ANAND v. U.P.