The President, Nagamalai Colony Formation Association vs The State of Madras and Others

S. Ramachandra Ayyar, C.J.—This appeal is directed against the judgment of Ramakrishnan J. which rejected the application filed by the Appellant for the issue of a writ of Mandamus or other appropriate writ directing the Respondents to forbear from proceeding further with the acquisition of land, in pursuance of the notification, dated 10th June 1960. The substantial question that falls to be decided in the appeal is, whether it will be open to the High Court in exercise of its jurisdiction under Article 226 of the Constitution to review the opinion of the Government u/s 17(4) of the Land Acquisition Act that a proposed acquisition was so urgent as to justify the suspension of the application of Section 5-A of the Act. That question has been answered in the negative in A. Natesa Asari Vs. State of Madras and Another, . No reasons have, however been given to support the conclusion reached in that case. It is argued by Mr. M.K. Nambiar appearing for the Appellant that the decision is incorrect) and is also inconsistent with the principle of judicial review accepted by the Supreme Court in P.J. Irani Vs. The State of Madras, .

Before proceeding to consider that question, we shall refer to the facts that have led up to the appeal and also consider one argument urged on behalf of the Appellant for the first time before us.

Nagamalai Colony Formation Association (to be referred as the Association), the Appellant herein, is an unregistered body formed with a view to provide houses for its members. Its office is at Madurai. About six miles from that city, in a village known as Villacheri lying on the Madurai Teni Road, certain rich and influential members of the Nadar community established a High School in the year 1956. The campus of the institution now covers about 50 acres of land. Just near the High School, but separated by a road, there is a large tract of waste land.

The housing problem in Madurai had always been acute. The city is the headquarters of two districts, Madurai and Ramanathapuram. The establishment of a number of offices, during recent years, expansion of trade and commerce, and the increasing urbanization of the rural population into the city rendered the position very difficult to the non-gazetted officers serving in the various offices in the matter of their securing decent houses. A large number of them joined together and decided in June 1957, to form for themselves a Cooperative Housing Society. The Society which was subsequently formed was duly registered under the Co-operative Societies Act. Its original strength which consisted of 235 members rose to over five hundred on the relevant data. The Society was able to secure, by purchase, a small extent of land of about ten acres for its purposes in the vicinity of the High School. It appears that in August 1958, the Honourable Minister in-charge of Co-operation laid the foundation stone for the housing colony of the non-gazetted officers. But the object which the Society had in view, namely, to provide every one of its members a house, could not be achieved with the small extent of land that they had acquired. The Society, therefore, applied to the Government on 16th September 1958 for acquisition of a sufficient extent of land. There was a further application made to the Revenue Divisional Officer, Madurai, for the same purpose on 29th January 1959. That disclosed that nearly 56.8 acres of land would be required and it suggested survey numbers 99 and 107 lying on the other side of the High School and which was contiguous to the property already owned by the society would be suitable. There is little doubt that the activities of the society must have been known to those in management of the High School. It was at this stage, or to be more precise, in February 1959 the Nagamalai Colony Formation Association was formed. Its members were mainly drawn from the Managing Committee of the High School but as we shall show presently a few teachers serving in the School were also there. The Association purchased about 12 acres of land soon after the formation in Survey Nos. 99 and 107 and made representations to the Government against the acquisition of lands comprised in those two survey numbers. A few months later, the association purchased a further extent of land of about 14 acres in the same locality thus becoming entitled to about 26-46 acres. On receipt of the representation, the Collector made elaborate enquiries. Evidently he took the view that the needs of the non-gazetted officers were greater. But whatever that may be, it is evident that the Government must have come to a tentative conclusion that the purpose of the association is a public one. It accordingly issued a notification on 10th August 1960, u/s 4(1) of the Land Acquisition Act declaring that the land specified in the notification which included the land in Survey Nos. 99 and 107 were required for a public purpose. The notification further stated that in view of the urgency of the matter and acting u/s 17(4) of the Act, the Government of Madras suspended the operation of the provisions of Section 5-A of the Land Acquisition Act.

Feeling aggrieved that the denial of an opportunity to make representation u/s 5-A affected its rights, the Appellant filed an application under Article 226 of the Constitution to prevent the Government from proceeding with the acquisition of the land on the ground that the Government had no power, in the circumstances of the case to suspend the operation of that provision.

The application was contested both by the State Government as well as by the Non-Gazetted Officers, Rural Co-operative Housing Society which was impleaded subsequently on its application as a party-Respondent. The only question argued before Ramakrishnan J., who heard the petition was whether the Government were entitled to act, in the circumstances, of the case, u/s 17(4) of the Act. It was conceded, on behalf of the Government, a concession which, as we shall show presently, was erroneous, that the question whether an emergency existed to justify an order u/s 17(4) should be decided objectively by the Government; but it was argued that, even so, the decision of the Government on that question would not be open to review by Court, so long as there was some material to support the conclusion. Ramakrishnan J., accepted this contention, and finding that there was material to justify the Government''s conclusion as to the urgency for the acquisition, dismissed the application. Hence this appeal.

It is not contended for the Appellant that the provision u/s 17(4) authorising the Government to dispense with the provision of Section 5-A is, in any way, invalid. But what is argued by Mr. M.K. Nambiar is, that an order u/s 17(4) would be valid only if three conditions are satisfied namely (i) that the land proposed to be acquired should be waste or arable land, (ii) that the acquisition was for the public purpose, and (iii) that the acquisition was urgent, and that Government must be satisfied as to the existence of these before they could take action under that provision and if their conclusion were erroneous on any one of the three matters, this Court could review it with a view to prevent the Government from clutching at jurisdiction by any erroneous decision.

On the assumption of that contention being correct, Mr. Nambiar first attempted to show that the acquisition in the instant case could not be said to be for a public purpose, as, according to him, the Society was a trading one formed with a view to traffic in house-sites, there being power vested in them to sell them outside the category of non-gazetted officers.

This is the point which we referred to at the outset as being a new one. There is no reference to it in the application for writ; no evidence was let in by producing the bye-laws of the Society to support it; nor was it even argued before the learned Judge. This is not its only demerit. On the materials found in the record, it is clear that the Society is a genuine one having more than 500 members, all of them in need of houses to live in and who have contributed nearly a sum of Rs. 80,000 now in deposit with the Government. But Mr. Nambiar did not content himself with criticising the objects of the Society. He said that the need of the Appellant-association was also a public one, and it behaved the Government to decide at least as to which of them had superior claims. Learned Counsel drew a picture of how the poor schoolmasters and others in the school staff would be benefited if the project which the association had in view materialized a school with resident teachers and members of the management. We are not quite sure whether the presence of the management near the teachers would at all be desirable or, in any way conducive to maintenance of proper academic atmosphere. But that as it may, there is practically no factual background for the contention.

In the enquiry by the Collector, it was revealed that only one member of the association was a teacher in the school. The rest were merchants at Madurai. It is, however, said that there are more teacher-members. The Appellant has divided the entire area of their purchase into 37 plots and allotted them to its members. Of them, only six were allotted to the teachers of the school, while the rest were given to the members of the Managing Committee who are mostly merchants having residence and businesses in Madurai Town. It cannot, therefore, be said that the association was formed purely or even substantially for the benefit of the teachers or staff of the school, though it might be, there are a few teacher-members in the association. But we are not really concerned for the disposal of the matter before us as to what use the association is going to put its property. The association, as the owner will certainly be entitled to oppose the proposed acquisition on any ground open to it under the law.

The main argument, in the appeal, relates to the question whether there was justifying urgency for the Government to act u/s 17(4) of the Act, dispensing with the compliance of the provisions of Section 5-A. Before that question is taken up, we should ascertain first whether it would be open to this Court now to canvas the propriety of the conclusion arrived at by the Government that the matter is urgent. Section 17(4) declares that if, in the opinion of the Government, the provisions of Sub-section (1) are applicable, namely, in a case of urgency, it nay direct with respect to any waste or arable land needed for public purposes that the provisions of Section 5-A shall not apply. Prima facie, it shows that the Government is to be the sole judge to decide the question of urgency.

But, it is contended that such opinion should be open to judicial review as otherwise the Government, which wields the power to acquire, can set at naught the statutory safeguards by an erroneous decision. It is, no doubt, a general rule that just as a Court of limited jurisdiction cannot give itself jurisdiction by a wrong decision on a preliminary or collateral matter, an authority empowered to act under a statute only, when certain condition exists can exercise the power only if such conditions exist; otherwise that would amount to an erroneous assumption of jurisdiction by the authority. In such cases, it will be open to the superior Court to see whether the decision on the preliminary or collateral matter or as to the existence of the conditions has been correctly made and quash the order or nullify the exercise of the power if it is not correct. In so doing, the Court merely keeps the inferior Tribunal or authority within the bounds of its authority. But the Statute itself may, in certain cases, confer an absolute power on the inferior Tribunal or authority to decide the jurisdictional fact, in which case the power of the superior Court will be very limited. What has therefore, to be ascertained first is the terms on which the authority is given under the statute. A statute may, for example (i), confer a power on condition of a particular state of facts existing, and it may be necessary for the authority so empowered to decide whether the condition exists in order to exercise the power; or (ii) the statute itself may authorise it to decide as to the existence of the preliminary facts. In the first case, the decision of the jurisdictional fact would be objective, and open to judicial review. In the second, the investigation into the jurisdictional fact might on the terms of the statute be objective or subjective. In this type of cases the statute itself having conferred a power on the authority to decide the jurisdictional fact, the area of interference by the superior Court will be limited and there will be complete authority to decide the facts.

Several cases have been cited before us by the learned Counsel for the Appellant as establishing his contention that there is a power of review in Courts over decisions on jurisdictional facts given by Tribunals with a limited jurisdiction. They have to be appreciated in the light of the classification we have made; We shall examine them in the course of this judgment and define the limit of interference by the High Court under each category and then proceed to consider whether an order u/s 17(4) of the Act can be interfered with and if so under what circumstances.

It may be stated at the outset that to whichever category a case may belong the Court will have the power to set aside an order which is passed mala fide.

The first of the above cases relating to the vulnerability of the finding of the inferior Tribunal on a jurisdictional fact is illustrated by the decision in State of Madras Vs. C.P. Sarathy and Another, While considering the validity of an award passed by the Industrial Tribunal on a reference to it u/s 19(1)(c) of the Industrial Disputes Act, 1947, the Supreme Court observed:

But it must be remembered that in making a reference u/s 10(1), the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court, cannot therefore, canvass the order on reference closely to see if there was any material before the Government to support its conclusions as if it was a judicial or a quasi-judicial determination. No doubt, it will be open to any party seeking to impugn the resulting award to show that what was referred to by the Government was not an industrial dispute within the meaning of the Act and that, therefore, the Tribunal had no jurisdiction to make the award.

Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, was a case which was concerned with the validity of proceedings initiated by an income tax Officer u/s 34 of Indian income tax Act. Under that provision, the income tax Officer will have jurisdiction to initiate assessment proceedings after the expiry of four years if two conditions were satisfied, namely, if the income tax Officer has reason to believe that there has been an under-assessment and that such under-assessment was the result of non-disclosure of material facts by the Assessee. It was held that these two requirements were jurisdictional facts which would be open for review by Court acting under Article 226 of Constitution.

Now, what is the extent of interference in regard to such matters? Is it confined to errors of law alone or of facts as well? This was considered in a recent case, Writ Appeal No. 15 of 1959, by a Bench to which one of as was a party, where it was held that in proceedings under Article 226 of the Constitution it will ordinarily be competent for this Court to consider the correctness of the decision of the inferior Tribunal which formed the foundation of its jurisdiction both in regard to facts as well as law.

Coming to the second type of cases, i.e., where the statute in terms constitutes the inferior Tribunal or authority as the sole judge of facts upon which its jurisdiction depended, it will not be open to a superior Court to interfere merely because there is an erroneous finding for the simple reason that the Tribunal or authority would be acting within its jurisdiction whether it decides right or wrong. The distinction between the two cases stated above can be found in the following passage in the well-known judgment of Lord Esher M.R. in The Queen v. Commissioners for Special Purposes of the income tax. (1888) 21 Q.B. 313, 319

When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give the tribunal or body. It may, in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exist as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they have also to consider whether jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that '' the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.

But even the latter rule has its limitations. First, such decision will be open to interference on all grounds on which the superior Court can interfere under Article 226 of the Constitution, for example, errors of law apparent on the face of record, etc. Second, by a wrong decision, the Tribunal cannot do what is prohibited by or transgress the limitations of the Constitution. In other words, the second rule enunciated by Lord Esher M.R., would apply only when a wrong decision on a jurisdictional fact does not enable the authority to do that which would be invalid under the Constitution.

The third type of cases where there exists a power to decide the existence of preliminary facts on a subjective basis is dealt with in Mr. Wade''s book on Administrate Law at page 67 thus:

sometimes Parliament confers a power in terms so wide as to be almost incapable of abuse. A favourite formula is to the effect that if the minister is satisfied that some state of affairs exists he may take action. Here it is plainly intended that the power is to be exercisable only in some particular state of affairs; but it is equally plain that the judge of that fact is to be the minister and not the courts of law. The Act is so expressed that what it requires is not an objective state of fact but a mere state of mind on the part of the minister. The over-riding power of Parliament when it wishes to use it, is well illustrated by the provisions of this kind, which leave the Courts powerless.

And again at page 72,

A common condition for the exercise of a power is ''if it appears to the authority that, etc. or if the authority is satisfied that. Here the Legislature seems plainly to have stepped across the frontier which divides the objective from the subjective and to have given the authority jurisdiction over the facts.

An illustration of this class of cases can be found in Kandinella Ramayya Vs. The Madras State, . where it was held that a power given to the registrar, under the Madras Co-operative Societies Act to supersede the committee of a registered society, if in his opinion, it was not functioning properly was dependent on the subjective satisfaction of the registrar and could not be questioned in a Court of law. But even in such a case, it will be open to the superior Court to see whether the exercise of the power was made on irrelevant considerations by reasons of bad faith or for purposes not contemplated by statute. In G. Radhakrishna Chettiar and Others Vs. The State of Madras and Others, , the Government took possession of certain waste lands u/s 17(2) of the Land Acquisition Act not for the reason that there was urgency for so doing but for a different reason, namely, to avoid the expiry of the three-year period specified in Section 34 of the Town-Planning Act. Rajagopala Ayyangar J. held that, as the power conferred dependent albeit on the subjective satisfaction of the Government was not exercised for the purposes contemplated by the statute, it was liable to be quashed. The scope of the power of the Superior Court to interfere in such cases has been considered by the Privy Council in Estate and Trust Agencies (1927), Limited v. Singapore Improvement Trust (1937) A.C. 898. Referring to this case, H.W.R. Wade says in Administrative Law at page 72:

In one case a reinstatement committee had power to make orders where the committee are satisfied that default has been made by the former employer--and it was held that the question whether some person was truly the former employer or not was wholly for the committee to determine. But in other cases, the Courts have refused to be daunted by this kind of formula. For example a board had power to declare a house unsanitary ''whenever it appears to the board'' that the house was unfit for human habitation, but the Privy council invalidated their order on the ground that they had applied a wrong standard to a particular house.

We shall now proceed to consider to which of the three classes stated above an order u/s 17(4) of the Land Acquisition Act belongs. For that purpose, it will be necessary to refer to certain material provisions of the Act before taking up the construction of that provision. Section 4(1) empowers the appropriate Government, if it considers that any land in any locality is needed or is likely to be needed for any public purpose, to issue a notification to that effect in the official Gazette. At that stage, what the Government is to do is to come to a tentative conclusion that the particular land is needed for a public purpose. Section 5-A provides that any person interested in the land which has been notified u/s 4(1) may object to the acquisition of the land within the period specified therein. Such objections should be in writing to the Collector who will give the objector an opportunity of being heard either in person or by pleader. After hearing such objections and after making such further enquiry as he deemed necessary, the Collector will have to submit the case for the decision of the appropriate Government along with his report containing his recommendations. Section 6(1) then states that if the Government is satisfied after considering the report, if any, made u/s 5-A Sub-section (2) that the particular land is needed for a public purpose...a declaration to that effect shall be made and authenticated in the manner specified therein and it also provides that the declaration so made shall be conclusive evidence that the land is needed for a public purpose. Once the declaration has been made, it will be open to the Government to acquire the land. We shall now reproduce Section 17(1)(2) and (4) as they are very material for the present discussion. Section 17(1) reads:

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 any waste or arable land needed for public purpose...or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances.

Explanation. - (1) This sub-section shall apply to any waste or arable land notwithstanding the existence thereof scattered trees or temporary structures such as huts, pandals or sheds.

(2) In the following cases, that is to say (a) 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 river-side or ghat station or of providing convenient connection with or access to any such station, (6) whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land, (i) for the purpose of any library or educational institutions or (ii) for the construction, extension or improvement of (A) any building or other structure in any village for the common use of the inhabitants, of such village, or (B) any godown for any society registered or deemed to be registered under the Madras Co-operative Societies Act, 1932, or (C) any dwelling house for the poor or (D) any irrigation tank, irrigation or drainage channel or any well or (E) any road; 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 form all encumbrances:

Provided that the Collector shall not take possession of any building or part of 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)[omitted.]

(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 5-A shall not apply, and if it does so direct, a declaration may be made u/s 6 in respect of the land at any time after the publication of the notification u/s 4 Sub-section (1).

From the above it is apparent that the power vested in the Government to deprive the citizen of the opportunity to show cause against a proposed acquisition in the manner specified in Section 5-A, is limited to cases where the Government is satisfied that an order could be made under Sub-sections 1 and 2. Reading Sub-section 4 with Sub-section 1 which alone is relevant to the present case, there are three matters on which the Government should be satisfied before taking action; (i) That the property proposed to be acquired is waste or arable land; (ii) that the land is needed for a public purpose; and (iii) that the need is urgent. The first is an objective fact while the other two are matters of opinion. Although Sub-section 4 does not make a distinction between the first and the other two matters on which the Government have to form their opinion for taking action, it is evident that the first cannot be a mere matter of opinion; but the other two will be. Nothing is indicated in the section as to the process by which the Government are to form their opinion. In Section 6, for example, the Government are directed to reach their conclusion after considering the Collector''s report, if any. No such process is envisaged u/s 17(4). No objective criterion is laid down to guide the Government. The sub-section does not even use the words like, that the Government should be reasonably satisfied as to the existence of the condition. Having regard to the fact that action u/s 17(4) is to be taken in cases of urgency, it would, indeed, be hampering the freedom of swift action if an objective investigation were to be prescribed. The word opinion used in the section itself implies that it is what the Government thinks on the question of urgency and public purpose that matters. In a recent case before the Supreme Court which related to acquisition of certain lands for the establishment of a factory for manufacturing refrigeration compressors, the Court, by a majority, is reported to have held, that once a declaration had been made by the Government u/s 6 of the Land Acquisition Act that a particular land was needed for a public purpose such a declaration would be conclusive evidence of the fact that it was so needed. From this it would follow that the question whether a land was needed for a public purpose even at the stage of making the final declaration is one for the subjective satisfaction of the Government. Indeed, Section 6(3) gives a finality to the conclusion so arrived at by the Government. That being so, the same question at the earlier stage, when Section 17(1) and (4) come into operation, should also be one for its subjective satisfaction; a fortiori the question of urgency.

In Hubli Electricity Co. Limited v. Province of Bombay ILR (1949) Bom. 274 (P.C.) the Privy Council, while construing Section 4(1)(a) of the Indian Electricity Act which authorized the Government to revoke the licence of a licensee if in its opinion the public interest so requires repelled the contention that the opinion of the Government was subject to objective tests, and observed:

Their Lordships are unable to see that there is anything in the language of the sub-section or in the subject matter to which it relates upon which to found the suggestion that the opinion of the Government is to be subject to objective test. In terms the relevant matter is the opinion of the Government--not the grounds on which the opinion is based. The languages leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming an opinion.

Ramakrishnan J., has held that the opinion of the Government as to whether an acquisition was urgent or not should be formed on the objective basis, but the learned Judge did not issue the Writ as he was satisfied that there were materials below the Government which justified their opinion. Although the learned judge has not referred to the principle by which an objective decision by an inferior Tribunal could still be outside the purview of judicial review, it is evident that he was having in mind the second proposition laid down in The Queen v. Commissioner for Special Purposes of the income tax (1888) 21 Q.B.D. 313, which we have referred to earlier.

We are unable, with great respect, to agree with the view taken by the learned Judge, as we consider that the opinion as to the existence of an urgency u/s 17(4) is to be reached on a subjective approach. This was the view taken in A. Natesa Asari Vs. State of Madras and Another, with which we agree. We may, in this connection, refer to Robinson v. Minister of Town and Country Planning (1947) I.K.B. 702, which was concerned with a similar question. An Act provided that where a Minister was satisfied that it was requisite for the purpose of dealing satisfactorily with the extensive war damage in an area of local planning authority that a part or parts of whose area consisting of land should be laid out afresh and redeveloped as a whole, an order declaring that all or any of the land in such part of the area, to be land subject to compulsory purchase for dealing with the war damage may be made by the Minister. Green M.R., rejecting the contention that the satisfaction of the Minister that an area is required for the purpose of dealing satisfactorily with war damage is a subjective one, observed: (page 714).

There are, it appears to me, a variety of grounds on which this argument should be rejected. It imports an objective test into the matter to which such a test is entirely inappropriate since it leaves to the Court to decide what matters are and what are not sufficient to justify a conclusion as to requisiteness; this is necessarily so since the question which, according to the arguments, the Court had to propound to itself will be, was the evidence before the minister such as to entitle him to be satisfied on the point of requisiteness; and this is to substitute a test formulated in some unexplained manner and according to some unascertainable principle by the Court itself for the opinion of the minister to which the language of the sub-section commits the decision.

Both the reasons given above in the inappropriateness of the matter being judged in an objective manner and the conflicting tests which the authority and the Court might apply, apply with equal force to the present case. Indeed, it may even lead to very inconvenient results if the question of urgency as to be decided finally by the Court.

But then, Mr. Nambiar contends that if Section 17(4) is to be construed so as to deprive the Court of its power of examining whether the conditions necessary for action under that section exist or not, the provisions will offend Articles 14 of the Constitution. In other words, the argument is, not that Section 17(4) is invalid, but that it would be valid only if a power of judicial review is recognised in regard to the correctness of the opinion of the Government on the three matters referred to earlier. Elaborating the argument ,learned Counsel has submitted that the right to represent to the Government against any proposed acquisition should be the same for all citizens whose property is sought to be acquired as equal protection of law should exist under similar circumstances; the denial of such opportunity to some by virtue of Section 17(4) would be a denial of equality before law unless the circumstances which justify such denial is made justiciable ; if it were otherwise, it would mean that the Government by its own fiat can arbitrarily deprive a particular citizen of his right to show cause while preserving it for another. It is, therefore, argued that if Section 17(4) is not to be hit at by Article 14, it is essential that the conditions which should exist before the exercise of the power should not be for the subjective but objective satisfaction of the Government so that the Courts can see that the Government acted in conformity with the statute.

There can be, no doubt, that if a statute applied unequally to persons or things similarly situate, it will be an instance of violation of the constitutional guarantee contained in Article 14 of the Constitution. The position will be the same even if the statute in terms is not discriminatory but enables discriminatory treatment to be accorded to persons or things similarly situated by virtue of the power or discretion vested in any authority or the Government. In regard to the latter class of cases, if the Legislature lays down a policy and indicates a rule for the guidance of the authority or the Government there will be no violation of Article 14 of the Constitution, as any order by that authority will have to be in conformity with the standards so laid down. Whether in an individual case the authority or Government acted in consonance with the principles laid down by the statute can always be agitated before the Court in appropriate proceedings. If the statute does not lay down a rule or indicate its policy for the authority vested with the power, such power being uncanalised can be regarded as arbitrary and, therefore, void by virtue of Article 14. It is only in the former class of cases, that is, where statute vests a discriminatory power but at the same time affords guidance for its exercise then the necessity for judicial review arises to see that it is exercised consistently with the policy of the Act so that there is no discrimination. If the legislation were to be valid, individual cases of exercise of power should be justiciable.

But a different principle arises if the statute itself makes a classification of persons or things to whom its provisions should apply--there being equality in the matter of application of the statute among the various persons in that class. So long as the classification is reasonable, there would be no question of discrimination. Now in the present case Section 17(4) which vests a power in the Government is restricted to a distinct class of property namely, waste and arable land. In regard to other kinds of property, the Government will have no power to dispense with Section 5-A. The classification is intelligible, because the owner will generally have greater reason to oppose the acquisition of other kinds of property like buildings, etc., than waste or arable land. In Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, , analysing the position laid down five propositions, of which propositions 1 and 6 will be sufficient for the present purpose. They are,

Proposition 1.--A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the Court. In determining the validity or otherwise of such a statute, the Court has to examine whether such a classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. When the Court find that the classification satisfies the tests, the Court will uphold the validity of the law.

Proposition 5.--Statute may not make a classification of the persons or things to whom its provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of the discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification, does not proceed on or follow such policy or principle it has been held by this Court in Kathi Raning Rawat Vs. The State of Saurashtra, that in such a case the executive action but the statute should be condemned as unconstitutional.

Mr. M.K. Nambiar placed considerable reliance on the recent decision of the Supreme Court in P.J. Irani Vs. The State of Madras, for the position that in order that Section 17(4) may be valid, the order of the Government passed thereunder should be open to scrutiny by the Court. By that judgment, the Supreme Court affirmed the judgment of this Court reported in Globe Theatre v. State of Madras ILR (1954) Mad. 616 the question in the case being about the validity of Section 13 of the Madras Buildings (Lease and Rent Control) Act. The section provided that the State Government may notwithstanding the provisions of the Act which gave protection to tenants of buildings against eviction, exempt such buildings or class of buildings that they chose from the operation of the Act or any of its provisions. It was contended that the power conferred u/s 13 was so sweeping that the Government might arbitrarily choose, to which building the Act should apply and which should be exempt. The contention was rejected as the preamble and the operative portions of the Act afforded sufficient guidance to the Government for the exercise of their discretionary power, and, if there was any contravention of such legislative principle it could be corrected in a judicial review. The case falls under propositions in The State of Madras Vs. Gannon Dunkerley and Co., (Madras) Ltd., . The judgment of the Supreme Court expressly says that the case would come under that head. To the same effect is the judgment in Jyoti Pershad Vs. The Administrator for The Union Territory of Delhi, .

But the present case would come under proposition-1 referred to above. There has been a classification, the power of exemption conferred u/s 17(4) applying only to waste and arable land. When, therefore, the statute invests in the Government an authority to dispense with the procedure prescribed by Section 5-A with respect to waste and arable lands alone, which has to be exercised on its satisfaction as to the acquisition being urgent and for a public purpose, there is no contravention of equality before law.

But the opinion of the Government u/s 17(4) as to whether the particular property sought to be acquired is waste and arable land, stands on a different footing. For example, the Government cannot, by erroneously holding a property which is a building, to be waste or arable land, proceed u/s 17(4). As stated earlier, whether a property is waste or arable land is an objective fact. It is true that the power to form an opinion on that question is given to the Government. But an erroneous decision on that question would render the classification under the statute nugatory and thereby infringe Article 14. It must, therefore, be competent to the Court to review the decision in such a case. In Navnitlal Ranchchodlal v. State ILR (1960) Bom. 615, it was accepted that the question whether the land is waste or arable is an objective fact in respect of which the Government must form the necessary opinion on a consideration of reasons which are relevant to a just determination, but the correctness of the opinion so formed could not be challenged in Court. We are, with great respect to the learned Judge, for the reasons stated just now, unable to agree that a Court cannot consider the correctness of the decision in such a case. In our view, of the three matters on which the Government have to form its opinion before suspending the provisions of Section 5-A, namely, (1) that the property is waste or arable land, (2) that the acquisition is a public purpose, and (3) that the need to acquire is urgent, the opinion on the first will be open to judicial review while that on the other two questions depending only for the subjective satisfaction of the Government cannot be challenged in these proceedings except on the ground indicated in the course of our judgment.

There is no dispute in this case about the property being waste land; nor is the opinion of the Government on the question of urgency challenged on the ground of want of bona fides or as having been arrived at by applying wrong standards or on irrelevant considerations. What all has been stated is that the proposal for acquisition which was pending since 1958 cannot suddenly become urgent in 1960. This is a matter entirely for the satisfaction of the Government. The proceedings initiated by the Government for the acquisition of the lands in question are, therefore, valid. The appeal fails, and is dismissed with costs.