JUDGMENT

B.P. JEEVAN REDDY, J.—These appeals are preferred against the judgment of the Full Bench of the Rajasthan High Court allowing a batch of 16 special appeals. The special appeals were preferred against the judgment of a learned Single Judge dismissing a batch of 24 writ petitions. The result of the judgment of the Full Bench is that the notification issued by the Government of Rajasthan under Section 4(1) of the Rajasthan Land Acquisition Act, 1953 proposing to acquire a large extent of land stands quashed.

2. The notification under Section 4(1) of the Rajasthan Act, published in the Rajasthan Gazette dated January 13, 1982, proposed to acquire a total extent of 2570 bighas (approximately equal to 1580 crores) for the benefit of the Rajasthan Housing Board. On February 9, 1982, another notification was issued under Section 17(4) of the said Act dispensing with the provisions of Section 5-A. On the same day, a declaration under Section 6 was also issued in respect of the said area. According to the Government, the possession of the land was also taken on May 24 and 25, 1982. The validity of the said notifications was questioned in the batch of writ petitions (being S.B. Civil Writ Petition No. 707 of 1982 etc.) on three grounds viz., (i) that the land acquired was not a waste or arable land inasmuch as there were pucca and kutchha houses, huts and cattle sheds etc. on the said land. If so, the power under sub-section (1) and sub-section (4) of Section 17 could not have been invoked to dispense with the enquiry under Section 5-A; (ii) that there was no real urgency warranting the invocation of urgency clause. An inquiry under Section 5-A ought to have been held, which is a valuable right given to the land-owners whose land is acquired under the Act; and (iii) that at any rate the houses and other structures on the land acquired should not have been acquired.

3. The learned Judge rejected all the three contentions and dismissed the writ petitions. Special appeals were preferred against the same which were heard by a Division Bench in the first instance. The two learned Judges, N.M. Kasliwal and K.S. Siddhu, JJ. differred in their opinions. Accordingly, the matter was referred to a third Judge by an order dated December 12, 1983. Three questions were framed for the consideration of the third Judge viz., (1) whether it was necessary for the Government to mention in the notification that the land is waste or arable and whether the non-mention of the said fact vitiates the notification; (2) whether it was obligatory upon the Government to mention in the notification issued under Section 17(4) that the land proposed to be acquired is waste or arable and whether the non-mention thereof vitiates the said notification; and (3) "if a small fraction of an arable land proposed to be acquired is occupied by buildings like huts, kham houses and pucca houses for residential purposes and for keeping fodder, cattle farms, cattle sheds and for similar other purposes, is it still permissible to treat the entire land as arable land and issue notification under Section 17(4) read with Section 17(1) of the Rajasthan Land Acquisition Act, 1953? If not, what are the legal consequences which such buildings aforementioned entail in the context of the said notification?"

4. The third Judge recorded his opinion on the said questions but when the matter went back to the Division Bench, it was of the opinion that while the opinion of the learned third Judge on questions (1) and (2) was categorical, affirming the view of the learned Single Judge, his opinion on question (3) was not clear or categorical. Accordingly, the said question (3) was referred to a Full Bench. The Full Bench comprising N.M. Kasliwal, M.B. Sharma and Farooq Hasan, JJ. heard the parties and held by a majority (Sharma and Farooq Hasan, JJ.) that inasmuch as there were pucca and kutchha houses, cattle sheds etc. on a fraction of a land proposed to be acquired and also because the notif