The court emphasized the need for real urgency to exercise the power under Section 17(4) and the requirement of compliance with Section 4(1) for public notices.

( 1 ) IN the issue of the Mysore Gazette of May 4, 1961 certain lands claimed by the petitioner were proposed to be acquired for the purpose of a tank whose construction was-considered to be imperative by the Government, on the basis of a report of the Public Works Department through the concerned Divisional Commissioner. By that Notification the Government also directed that the provisions of Section 5-A or the Land Acquisition Act shall not apply.

( 2 ) IN this Writ Petition in which this notification is challenged by the petitioner, two submissions have seen made by Mr. Sreenivasan, his learned Advocate. The first of them is that the provisions of Section 4 (1) of the Act have been transgressed inasmuch as in addition to the notice published in the official Gazette, the public notice which the Deputy Commissioner, should have published giving notices of the substance of the notification published in the gazette,, was not published. The second submission is that this was not a case in which it was within the competence of Government to dispense with the requirements of Section 5-A since the case did not fall within sub-Section (1) of Section 17. It seems to us that both these submissions made by Mr. Sreenivasan are substantial.

( 3 ) WHILE there is an allegation in the affidavit of the-petitioner that the Deputy Commissioner did not cause public notice to be given as required by the second part of Section 4 (1) at convenient places in the locality at which the lands proposed to be acquired were situate, there is no repudiation of this allegation in the counter-affidavit produced on behalf of the State. Nor did mr. Government Pleader show us any material on the basis of which we could say that this public notice was given. We must, therefore, take it that the public notice required by the second part of Section 4 (1) of the Act was not given in this case by the Deputy Commissioner which means, that there was a serious infirmity even at the commencement of the proposed acquisition proceedings.

( 4 ) WHEN, we consider the next submission made by Mr. Sreenivasan it is found that in the notification published dispensing with the provisions of Section 5-A of the Act it was not stated in that notification whether the lands proposed to be acquired were waste or arable lands. Now it is clear from sub-Section (4) of Section 17 that the power to dispense with the requirements of section 5-A would be available only Ire the case of a land to which in the opinion of the government the provisions of sub-Section (1) or sub-Section (2) are applicable. This being a case in which no one contends that the provisions of sub-Section (2) are applicable, the only question is whether the provisions of sub-Section (1) of Section 17 were, in the opinion of the government, applicable to the lands proposed to be acquired.

( 5 ) IN the impugned notification all that was said by the Government was that 'in view of the urgency of the case' the provisions of Section 5-A of the Act shall not apply to the proposed acquisition. The petitioner in his affidavit states that the provisions of sub-Section (1) of Section 17 of the Act were not in fact, applicable to the present case since some of the lands proposed to be acquired were garden lands and therefore could not be brought into the category or waste or arable lands. This allegation in the affidavit of the petitioner has not again been expressly repudiated in the counter-affidavit produced on behalf of the State.

( 6 ) NOW, the power under Sub-section (4) of Section 17 becomes available to the Government only in cases in which it forms the opinion that the provisions of Sub-section (1) or Sub-section (2) of Section 17 are applicable to the land proposed to be acquired. If Sub-section (2) is inapplicable, sub-section (1) becomes applicable only if the case is one of urgency and the land proposed to be acquired is a waste or arable land needed for a public purpose or for a Company. In ot