P L D 1965 Dacca 36 (PLP)

A. SATTAR, J.‑The petitioner in this case has called in question a notification issued under section 4 of the Land Acquisition Act by the Provincial Government which was published on the 21st of February 1964 that the petitioner's lands comprised in several petty settlement plots were likely to be required to be taken by Government at the expense of M/s. Hafiz Jute Mills Ltd., of 45, Khatunganj, Chittagong for a public purpose viz., for setting up Hafiz Jute Mills in the village of Dakshin Sonai chari. The notification also stated that the Provincial Government had directed under section 17 (4) of the Land Acquisition Act that the provisions of section 5‑A of the Act shall not apply to the aforesaid lands. The petitioner has challenged the notification in question on two grounds. The first contention of Mr. Mozammel Huq has been that, as subsection (1) of section 17 of the Land Acquisition Act did not apply to the lands in question, the notification issued by the Provincial Government under subsection (4) directing that the provisions of section 5‑A shall not apply to those lands, is bad in law. Learned Advocate thinks that a notification under sub section (4) of section 17 can only be issued after service of notice under subsection (1) of section 9 and on an express declaration that the land in question were required urgently. It is contended that as no notice under subsection (1) of section 9 has so far been served upon the petitioner and there is nothing to indicate in the notification in question that the Provincial Government thought that the lands were urgently required, the notification so far as it directed that the provisions of section 5‑A would not apply, is bad. We are not impressed by this argument. A careful reading of section 17 clearly indicates that the declaration under subsection (4) of that section has to be made before serving f notice under subsection (1) of section

9. Subsection (1) of section 17 only contemplates that when the Provincial Govern ment directs that there is urgency the lands to be acquired can be taken possession of before any Award has been made. Formerly, subsection (1) of section 17 was applicable only to waste or arable land but now after the amendment of the section by Ordinance No. XII of 1963 it is applicable to all lands. So far as the second branch of this argument is concerned, namely, that as the Provincial Government did not specifically state in the notification that the lands were required urgently, the notification is bad, we are of the view that the absence of any such statement in the notification does not invalidate it. The very fact that the Provincial Government thought that the provisions of section 5‑A should not apply to the lands in question clearly points to the fact that it had formed an opinion that the lands were required urgently. We may, in this connec tion, observe that the decision of the Provincial Government in this regard is not subject to review by this Court. Whether an urgency exists or not is a matter solely for the determination of the Government and it is not subject to review by any Court (See A I R 1954 Mad. 481). The second point urged is that the notice dated the 9th March 1964, which has been served on the petitioner asking him to accept a sum of Rs. 2,940 as compensation and pointing out that an Award had already been made under section 11 of the Land Acquisition Act is bad in law as before the Award the pro visions of sections 7 to 11 were not complied with. In the Affidavit‑in‑opposition filed by the Additional Land Acquisition Officer, it has been stated that through mistake the above notice was issued in a wrong form. It has been pointed out that the above notice only relates to the advance payment of compensation as provided in the new section, namely section 17‑A of the Act. Section 17‑A of the Act provides that subject to the provisions of sections 11, 23 and 24 the persons interested shall be offered and if agreeable paid in advance before possession is taken over under section 17‑A compensation to the extent of 10 % for struc tures and buildings, 75 Y. for homesteads and orchards and 50% for vacant Nal lands on the basis of a provisional estimate prepared by the Collector on rough and ready calculation. In view of the clear assertion in the affidavit‑in‑opposition, we are of the view that the misgiving of the petitioner that a final Award has been made without complying with the provisions of sections 7 to 11 is without any basis. No Award can be made under D section 11 unless the provisions of sections 7 to 11 are complied with. These are the two points which have been canvassed before us in this case in support of this Rule and as we have found no substance in them the Rule is discharged but we direct the parties to bear their own costs. SAYEM, J.‑I agree. K. A. B. Rule discharged.