Rai Bahadur Ganga Bishnu Swaika & Ors. v. Calcutta Pinjrapole Society & Ors.

Judgment

The Judgment of the Court was delivered by Sllelat, J. One Arunshashi Dasi, Charn Chandra Sur and Jotish Chandra Sur were the owners of the sflit land admeasuring 1.15 acres situate in Rishra Municipality, West Bengal. On November 15, 1920 they leased the land to Srikrishna Goshala. On September I 0, 1924, the said Goshala sold its leasehold interest in the said land ·to the 1st respondent Society. On September 5, 1935 the Society sold the said leasehold interest to one Sovaram Sanna. In 1941, the said Jotish ~ur filed a Rent Suit against Sovaram and obtained an ex parte decree against him. On September 9, I 941 1he said Jotish in execution of the said dxrec and at an auction sale held thereunder purchased Sovaram ·s interest and took posscss10n of the land. Thereafter. Sovaram "s widow and son filed a suit against the said Jotish aUcging (hat as Sovaram had died during the pcndency of the said suit the decree passed against him was a nullity and so also the auction sale.

On Ju~ 27, 1945 the said suit was decreed against the said Jotish ·and appeals by him abainst the said decree both in the District Coun and the High Court were dismissed. While the said suit was pending, Swaika, the first appellant herein, purchased from the said Jotish his interest in the said.land for Rs; 6,000/- and also agreed to carry on the said litigation against Sovaram's widow and son. Swaika thereafter tried to obtain possession of the land but was foiled in doing so by an injunction obtained by Sovararn's widow and son, the plaintiffs in the said suit. Swaika then got the Education Department to move for the acquisition of the said land for a Girls' High School of which, it ~r.rcars, he was the prime spirit. On July 1, 1946 the Stat~ Gt•vcr:unent issued the notification ·under sec. 4 of the Land Acqui;itic>n Act in respect of the suit land. An inquiry under s. 5A was held ::nd thereafter on April 18, 1951 the Govenunent issued the notifi;:ation under scs.

6 and passed the necessary 0rd.:r under s,c. 7. On December 22, 1951 the I st respondent Society purchasc<l the leasehold interest in the said land from Sova:am·s widow and I GANGA BISHNU v. PINJRAROLE SOCIETY (She/at, J.) I 19 son after thei~ suit was finally disposed of but after the said noti- · fication under sec. 6 was issued. The 1st respondent Suclety then '\filed the pre~ent suit against the State of :-Vest Ben¥al, the said Swaika and other members of the managmg committee of the said schoot for a declaration that the said notifications and the proceedings taken thereunder were ma/a fide and null and V,oid and' for an injunction against the Government taking possession of the said land. The Trial Court framed five issues but so far as thls appeal is concerned the relevant issue is fssue No. 3, viz., "Is the plaintiff entitl.00 .to a decree for a declaration that the declaration under section 6 and order under section 7 and proceedings under·the L.A. Act-in Preliminary Land Acquisition Case No. 2 of 1945-46 of Howrah Collectorate. were mala fide and in fraud of the Government's powers under the said Act and null and void and not binding on the plaintiffs ?"

On this Issue, the Trial Court found that the 1st re>pondent Society failed to establish the allegations as to ma/a fides and abuse_ Qf power under the said Act and consequently dismissed the suit. In the appeal by the 1st respondent Society before the Additional District Judge the only points urged for detennination were (i) whether the said acquisition proceedings were male fide and in fraud of the Act and therefore null and void and (2) whether the Society was entitled to an injunction against the Government taking possession of the said land. It appears from the pleadings as also the issues framed by the Trial Court that the question as to whether the State Government was satisfied or not as to the purpose and the need for acquiring tho said land was not specifically raised. Therefore, an attempt· was made to raise the contention at the time of the hearing of the appeal that the declaration under sec. 6 did not prove such satisfaction.

The District Judge, however, dismissed the application for amendment of the piaint by the 1st respondent Society. The contention was sought to be raised because .the: notification used tho words "as it appears to the Governor that the land is required to be taken for a public purpose" instead of the words, viz., "the Governor is satisfied that the land is needed for a public pu!'p06C." The argument was that the _said wvrds used in the notification did not ex facie indicate the satisfaction of the government which is a condition precedent to such a declaration and that therefore sec. 6 notificati<:>n was not in proper form and the acquisitbn - proceedings taken thereafter were bad in law. It appears that though the amendment was disallowed, the said contention was allowed to be urged, for, the District 1udge has answered it in \he following terms :- ..Whatever language may be used in the declara- ~on .under. sec.

6 the poi!J! that requires for considerauon 1s whether the execu!lve authority did actually fonn an opinion about the r~;uirement of the land for public purpose. So far as the present declaration (Ex. JOA) is concerned it will go 10 show that the land was required for public purpose and it is conclusive in view of the proVISions of section 6 of the Land Acquisition Act." On thfs reasoning he dismissed the 11ppeal. The District Judge also agreed with the findings of the Trial Court Iha! the 1st respondent Society failed to prove ma/a fides on the part of the Government or the misuse of its power under the Act. The I st respondent Society fi.lcd a Second Appeal which was heard by a Division Bench of the High Court. Before the High Court, Counsel for the respondent Society raised two contentions: ( i) as to ma/a fides and abuse of power and (ii) that the notification~ under secs. 4 and 6 were not in accordance with law and were therefore invalid.

The High Court took up the second contention first and held ~s regard> sec. 4 notification that it was valid and could not be assailed. As regards sec. 6 no1ificalion however the High Court was impressed with the contention that aft.er the amendment of sec. 6 by Act 38 of 1923, which substituted 1hc words "when the Local G<JVernment is satisfied'". for the words "whenever it appears to the Local Government", satisfaction that ~he land is needed for a public purpose or for a Company is a condition precedent for the decl'aration under sec. 6 and that therefore the Government should make a declaration "to that effect", i.e., of it< satisfaction in the 119tification itself. Th~ High Court accepted this contention and held that such satisfaction must appear in the declaration.

The High Court also held that as the notification used the words "whereas it appears to the Governor that the land ls required" instead of the words. viz., "whereas the Governor is satisfied that the land is required" the dedaration did. not show such satisfaction and therefor.~ it was not in proper form and could not bc said "lo afford sufficient statutory or legal basis for proceeding in acquisitio~." As regards the contenuon as to ma/a (idel· and fraud on the statute the High Court held that there was no evidence on the record from which it could be in- (errcd that there was coll us ion between the said Swaika and the Education Department or the officers of the Land Acquisition Department and that therefore it could not be held that the proceedings were in fraud of the statute or ma/a fide. The High Court also oh«rvcd that "prima facie, there is no reason ·o differ from the finding' made by the court~ below." GANGA B!SHNU v. P!NJRAPOLE ,,SOCIETY (She/at, .T.)

The quesdon as to ma/a {ides of the Government or the Government having misused ·its powers or having acted in fraud of the statute .was entirely a question of fact. There being a concurrent finding o_n that question by the Trial Court and the District Court against the 1st respondent Seciety, the High Court could not have reopened their concurrent finding except on the ground that it was perverse or unreasonable or wi'hout evidence. Such an argument not having been urged, the High Court could not go into that question. But it was urged that the High Court has m.~rely expressed a prima facie v:ew and has not conclusively accepted the finding of the Trial Court and the District Court. That .argument has no merit.

What the High Court really meant by the expression "prim!' facie" was that the finding being concurrent was· bindjng on 1t and that no contention as to that finding being perverse , ytc., having been urged before it there was not even a prima facie ca5e to justify the reopening of that finding. Therefore, the allegation as !O ma/a fides or abuse of power by the Government was conclusively negatived and Counsel for the !st respondent Society was therefore not entitled to canvass that question before us in this appeal. ;Ille only question therefore .that we are called upon to decide is whether the ·High Court was correct in holding that (i) , the Government's satisfaction must be stated in the notification itself and (ii) that because the notification has used the words "it ,appears to the Governor" etc., and not the words that .the Governor was satisfied, sec. 6 notification wa5 not valid.

To appreciate the construction placed by the High Court it is necessary to consider the effect of the change of words made by sec. 4 of Act 38 of 1923 in sec. 6(1). As sub-section 1 stood prior to 1923 the words were "subject to the provisions of Part VII of the Act, when it appears to the Local Government that any Pllrticular land is needed for a public purpose or . for a <:ompa:riy, a declara6on shall be m'ade" etc. The amend-· ment of · J 923 dropped these words and substituted the words "when the Local Government is satisfied after considering the report, if any, made under section 5A of sub-section 2" etc. It seems that the amendment was considered necessary because the -same Amendment Act inserted s. 5A for the first· time h1 the Act which gave a right to persons interested in the land to be <lCCJUired to file objections and of being h~ard thereon by the Collector.

The new section enjo:ned upon the Collector to consider such. objectiom and make a report to the Government, whose decision on such objections was made final. One reason why the word "satisfaction" was substituted for the word "appears" seems to be that since it was the. Government who after considering ,th\: objecti.:ins and the report of the Collector thereon was to arrive at its decision and then make the declaration required LI Sup. Cl/68-9 f 1%8) 2 S.CR. by sub-sect° on 2, . the appropriate words would be "11.·hcn the Local Gov.~rnmcn: is salisticd" ralher than lhc v.ords "when it appears lo the Local Government". The other reason which presumably led 10 lhe change in the language was to bring the words in sub-sec. I of sec. 6 in line with 1he words used in sec. 40 ~here lhc Government before granling ils consent to 1hc acquisi· uon for a Company has to "be satisfied" on an inquirv held as provided thcreinafter.

Since the Amendment Act 38 of 1923 provided an inquiry into the objections of persons inlcrcsted in the land under s. SA, section 40 also was amended by adding therein the words "either on the report of the Collector under s. SA or-. Sec. 41 which requires the acquir:ng Company to enlcr into an agreement w11h lhe Govemmenl also required salisfaclion of 1hc Government afler considering the report on the inquiry held under sec. 40. The Amendment Act 38 of 1923 now added in s. 41 the report of the Collec1or under s. SA, if any. These amendments show that even prior to the 1923 Amendment Acl. whenever the Government was required by the A :t to consider a report, lhc legislature had used the word satisfaction on the part of the Government. Since the Amendment A.ct 1923 intro· duced s.

SA rcquiring'the Collector to hold an inquiry and to make a JYI>Ort and required the Government 'to consider that report· ariiJ the objections dealt with in it, the legislature presumably though1 it appropriate to use the same expression which it had us.ed in secs. 40 and 41 where also an inquiry was provided for and the Government had to consider tlie report of the officer making such inquiry before giving its consent. But Coun~el for the 1 SI respondent Society argued that since the legislature has used different language from the one it had used earlier, it must mean 1hat it did so deliberately and because it considered the new words _as more appropriate. On the other band, Counsel for the appellant argued that the meaning of bo:h the expressions is synonymous.

It is not necessary for us in this appeal to construe the two expressions as on a construction of the s.!Ction we have come to the conclusion that it is 11ot n=- sary that satisfaction of the Government must ex facie appear in declaration made under the section. Sub-section I provides that when the Government is satistied that a particular land is needed for a public purpose or for a Company, a declaration shall be made "to that effect". Satisfaction of the Government after consideration of the report, if any, made under sec. SA is undoubtedly a condition orcc.~dent to a valid declaration, for. there can be no valid acquisition under the Act unless ihe Government is satisfied 1hat the land to be acquired is needed for a public purpose or for a Company. But there is nothing in sub-sec. I which requires that such satisfaction need be stated in the declaration. The only dcclara:ion GANGA BISHNU v. PINJRAPOLE SOCIETY (She/at, J.) as required by sub-sec.

1 is that the land to be acquired is needed for a public purpose or for a Company. Sub-section 2 makes this clear, fur it clearly provides that the declaration '"shall state" where such land is situate, "the purpose for which it is needed", its approximate area and the place where its plan, if made, can be inspected. It is such a declaration made u:ider subsec. 1 and published under ~ub-sec. 2 which becomes conclusive evidence that the particular land is needed for a public purpose or for a Company ::s ihe case may be. The contention therefore that it is imperative that the satisfaction must be expressed in the declaration or that oth.~rwise the notification would not be in accord with sec. 6 is not correct. The construction which we have put on sec. 6 is supported by the decision in Ezra v. The Secretary of state(') where it was held that a notification under sec. 6 need not be in any particular form.

The case went up to the Privy Council· but it appears from the report of that case that these observations were not challenged· or disputed before the Privy Council.(') We are also told by counsel that no statutory forms are prescribed by the West Bengal Government for such a declaration either under the Act .or the rules made thereunder though there are model forms framed presumably for the guidance only of the officers of the Acquisition Department. There beinj?; thus no s\atUtory forms and · sec. 6 not requiri\1g the declaration to be made in any particular form, the mere fact that the notification does not ex }acie show the Government's satisfaction, assuming that the words "it appears" used in the notification do not mean satisfaction, would not render the no'.ification invalid or not in conformity with sec. 6. Apart from the clear language of sec. 6 it would seem that it is immaterial whether such satisfaction is stated or not in the notification.

For, even if it is so stated a person interested in the land can always challenge as a matter of fact that the Government was not actually satisfied. In such a case the Government would have to satisfy the Court by leading .evidence that it was satisfied as required by sec. 6. In the present case no such evidence was led because the fact that the Gove1 nment was satisfied was never challenged in the pleadings and no issue on that question was sought to be raised. Even when the I st respondent Society sought to amend its plaint it did so only to say that the ,1otification did not state such satisfaction and therefore did not es'.ablish such satisfaction. The High Court no doubt thought that this. question was covered by Issue No. 3 framed by !he Trial Court. But the contention said to be covered by that issue was not that there was no satisfaction on the part of the Government that the land was needed for a public purpose, vi;:,., for he said Girls' School, but that (I) 1. L. R. 30 Cal.

36, 81. (2) 32 !'. A. 93. [I 968j'2 S.C.Rc the noti~cation in the absen.ce of words to that effect did not prove that sat!Sfaction. That bemg the. posttion and no issue having been raised on the factum of satisfaction, the State Gov.~rnment was never called upon to lead evidence to prove its satisfaction. The fact that sec. 5A inquiry was held and objections were filec' and heard, the fact that the Additional Collector had recommend ed the acquisition and had sent his rcpon to that effect and the Government thereafter issued sec. 6 notifica!ion would, in the absence of any evidence to the contrary, show that the condition precedent as to satisfaction was fulfilled. We arc therefore of the vi~w that the High Court was in error when it held that sec. 6 notiljcation was 'not in accord with that section and that proceedings taken thereafter were vitiated.

We may mention that Counsel for the !st respondent Society cited cenain authoritb and also attempted to canvass the issue as to ma/a {ides on the part of the Government. As to the authorities cited by him we think that they were neither relevant nor of any assistance to him. As regards the question of ma/a [ides, we do not think there is any )ustification for reopening the concurrent finding of the Trial Court and the Additional District Judge. In the resul!, the appeal is allowed, the High Court's judgment and decree arc set aside and the judgment and docree passed by the Trial Court and confirmed by the Addi. District Judge dismissing the suit of the !st respondent Society are restored. The !st respondent Society will pay to the appellant the costs in this Court Jr as also in the High Court. V.P.S. A ppea! allowed. I