Judgement

ALAGIRISWAMI J.:- The appellant is a tenant of Plot No. 428 in mauza Dehra Khas, pargana Central Doon, district, Dehradun. This land along with some other pieces of land was notified under Section 4 (1) of the Land Acquisition Act on February 8, 1962 for acquisition for the purpose of setting up an industrial estate at Dehradun. By the same notification, under Section 17 (4) of the Act it was directed that the provisions of Section 5A shall not apply on the ground that the provisions of Section 17 (1) were applicable to the facts of the case. He filed a writ petition out of which this appeal arises for the issue of a writ of certiorari for quashing the notification dated 8th February, 1962. He made various allegations which it is not necessary to go into for the purpose of this appeal. A learned single Judge of the Allahabad High Court dismissed the petition and an appeal filed by him was dismissed by a Division Bench of the same High Court.

2. The only point argued before us was that there was a pucca construction on plot No. 436 which was also notified for acquisition under the impugned notification and consequently the provisions of S. 17 (4) would not be applicable to that land as it was not arable or waste land which could be acquired by dispensing with the enquiry under Section 5A and as such the whole notifications is bad and should be quashed. Admittedly the appellant s land is a waste and arable land and thus falls under Section 17 (1) There was therefore no objection to the Government dispensing with provisions of Section 5A by resorting to the power conferred by Section 17(A). The person who could have taken objection to the enquiry under Section 5A being dispensed with was the owner of plot No. 436. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, therefore, not open to the appellant to question the validity of this notification. If possibly the owner of plot No. 436 had objected to the notification different considerations might arise. The appellant who is only the owner of plot No. 428 in relation to which Sections 17(4) are applicable and therefore enquiry under Section 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which Sections 17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge the notification.

3. On behalf of the appellant, however, reliance was placed on certain observations of this Court in Sarju Prasad v. State of U. P. (AIR 1965 SC 1763) to the following effect :

"lt was contended by Mr. S.P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land notified for acquisition was waste or arable and in support of his contention, counsel referred us to certain revenue record. But if only a part of the land is waste or arable and the rest is not, a notification under Section 17(4) dispensing with compliance with the requirements of Section 5A would be invalid. It would not be open to the Court to regard the notification as partially good and partially bad for if the State had no power to dispense with the inquiry in respect of any part of the land notified under Section 4(1), an inquiry must be held under Section 5A giving an opportunity to persons interested in the land notified to raise their objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other waste or arable land."

That case is the converse of the present case. The appellant therein was a person who was entitled to object to the notification. Under those circumstances the question whether the notification is to be quashed completely or only partially might well arise. But such a question cannot arise where a person like the appellant has no right to impugn the notification.

4. It was however, urged that under Section 5A(1) it is not only the owner of