The Government's determination that land is arable land under Section 17(4) of the Land Acquisition Act must be based on relevant factors and is subject to judicial review.

GOPAL RAO EKBOTE, J.

( 1 ) THIS is an application under Article 226 of the Constitution of India seeking the issue of a writ of certiorari to quash G. P. Rt. No. 372 Public Works, dated 9/03/1964.

( 2 ) THE relevant facts are that the Government, intending to acquire the land, T. S. No. 357 of an extent of 3,406 sq. feet, for construction of Telephone Exchange Office in Chirala town issued a notice in G. O. Rt. No. 372, Public Works, dated 9/03/1964 under Section 4 (1) of the Land Acquisition Act, Government also, acting under Section 17 (4) of the Act, directed that in view of the urgency of the case, the provisions of Section 5-A of the Act be dispensed with. It is to challenge this direction dispensing with Section 5-A of the Act that the present writ petition is filed.

( 3 ) THE principal contention of Mr. E. Ayyapureddy, the learned counsel for petitioner is that under Section 17

( 4 ) THE application of Section 5-A can be dispensed with only in a case where the land sought to be acquired is either a waste land or an arable land. His contention is that in the case, it is neither a waste land nor an arable land but a building plot situated in the local limits of Chirala Municipality and whereon temporary structures are eracted and the land is very costly. He therefore argues that since the Government have not applied their mind and determined that the land sought to be acquired is an arable land, the notification dispensing with Sec. 5a-quashed. I find sufficient force in this contention. (4) Section 17 (4) is in the following terms:-"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 under Section 6 in action of the notification under Section 4. Sub-respect of the land at any time after the publish section (1 ). . . . . . . . . . "an explanation to this sub-section is added by Madras Act 21 of 1948. The explanation in so far as it is relevant, is as follows:". . . . . . . . . . THIS sub-section shall apply to any waste or arable land, notwithstanding the existence thereon of scattered trees or temporary structures such as huts, pendals, or sheds. "what was contended by the learned Government Pleader is that the Government relying upon a report of the inspection, assumed that it is an arable land and that is why the application of Section 5-A was dispensed with. The inspectors report however, is only to the extent that there are some temporary superstructures on the land. The explanation extracted above merely states that the existence of the super-structure on any waste or arable land does not take out the case out of Sub-section 4 of Section 17. But even in such a case, the Government has to form the opinion basing it on relevant material, whether the land sought to be acquired is an arable land. The inspectors report admittedly does not claim that it is an arable land, nor is there any specific determination of the Government that the land sought to be acquired is an arable land.

( 5 ) IT is not disputed that there is no specific definition of arable land in this or any other relevant Act. Arable land, however, in common parlance means a land which is fit for cultivation and the said expression is usually used to mean lands which are actually cultivating or lands which can be put for the purpose of cultivation. This land is admittedly situated within the municipal limits of Chirala a business town. Even according to the counter, the land is worth Rs. 250. 00 per square yard and the extent of the land is only, 3,406 square feet. It is also not in dispute that the land is not cultivated. In these circumstances, it is difficult to hold that the said land is arable land. That it is not waste land is conceded. The land, which is a building site within the municipal limits and is situated in

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