Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
RAI BAHADUR GANGA BISHNU SWAIKA & ORS.
Vs.
RESPONDENT:
CALCUTTA PINJRAPOLE SOCIETY & ORS.
DATE OF JUDGMENT:
30/10/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
SIKRI, S.M.
CITATION:
1968 AIR 615 1968 SCR (2) 117
ACT:
Land Acquisition Act (1 of 1894), s. 6--Satisfaction of the
Government as to the purpose of and need for acquisition-If
should appear in the declaration.
HEADNOTE:
Under s. 6 of the Land Acquisition Act, 1894, the State
Government issued a declaration with respect to the land of
the 1st respondent after considering the report under s. 5A
of the Act. The declaration used the words ’as it appears
to the Governor that the land is required to be taken for
a.public purpose’ instead of the words ’the Governor is
satisfied that the land is needed for a public purpose’. A
suit filed by the 1st respondent against the State
Government and others challenging the declaration was
decreed in second appeal by the High Court. on the ground
that: (1) the satisfaction of the Government as to the
purpose of and the need for acquiring the suit land must
appear in the declaration itself; and (2) as the declaration
used the words ’it appears to the Governor etc.,’ instead
of the words ’the Governor is satisfied etc.’ it did not
show such satisfaction and therefore was. not in proper form
and could not form the legal basis for the acquisition.
In appeal to this Court,
HELD: There being no statutory form and s. 6 not
requiring the declaration to be made in any particular form.
the mere fact that the declaration does not ex facie show
the Government’s satisfaction. assuming that the words ’it
appears’ used in the declaration do not mean satisfaction.
would not make the declaration invalid or not in conformity
with s. 6. [123 E]
Satisfaction of the Government after consideration of the
report, any. made under s. 5A is undoubtedly a condition
precedent to a valid declaration. But there is nothing in
s. 6(1) which requires that the satisfaction should be
stated in the declaration, the only declaration required
by the sub-section being, that the land to be acquired is
needed for a public purpose or for a company. [122G-H]
Observations in Ezra’ v. Secretary of State, I.L.R. 30 Cal.
36, at p. 81. approved
Further, it is immaterial whether or not such satisfaction
is stated in the declaration. For. even if it was so stated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
a person interested in the land can always challenge. as a
matter of fact, that the Government was not actually
satisfied, and in such a case, the Government would’ have to
satisfy the court by leading evidence that it was so
satisfied. In the present case, the fact that the Government
was satisfied was never challenged, the only contention
raised being. that as the declaration dissatisfied was never
not state such satisfaction it did not establish such
satisfaction. Therefore, it was not necessary for the
Government to lead any evidence prove its satisfaction.
[123F-H].
[Whether the words ’it appears to the Governor that
the land is required to be taken for a public purpose’ and
the words ’the Governor is satisfied that the land is needed
for a public purpose’ are synonymous,. not decided. [122F-
G]
118.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 136 of 1965.
Appeal from the judgment and decree dated March 4,
1960 of the Calcutta High Court in Appeal from Appellate
Decree No. 1021 of 1957.
S.V. Gupte, and D.N. Mukherjee, for the appellants.
B.K. Bhattacharya, M.K. Ghose and P.K. Ghose, for
respondent No. 1.
P.C. Chatterjee, G.S. Chatterlee and P.K. Bose, for
respondent No. 2.
The Judgment of the Court was delivered by
Shelat, J. One Arunshashi Dasi, Charu Chandra Sur and
Jotish Chandra Sur were the owners of the suit land
admeasuring 1.15 acres situate in Rishra Municipality, West
Bengal. On’ November 15, 1920 they leased the land to
Srikrishna Goshala. On September 10, 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 Sarma. In 1941,
the said Jostish Sur filed a Rent Suit against Sovaram and
obtained an ex parte decree against him. On September 9,
1941 the said Jotish in execution of the said decree and at
an auction sale held thereunder purchased Sovaram’s
interest and took possession of the land. Thereafter,
Sovaram’s widow and son flied a suit against the said Jotish
alleging that as Sovaram had died during the pendency of the
said suit the decree passed against him was a nullity and so
also the auction sale. On June 27, 1945 the said suit was
decreed against the said Jotish and appeals by him
against the said decree both in the District Court 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 Sovaram’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 appears, he was the prime spirit. On
July 1, 1946 the State Government ’issued the notification
under see. 4 of the Land Acquisition Act in respect of the
suit land. An ’inquiry under s. 5A was held and thereafter
on April 18, 1951 the Government issued the notification
under sec. 6 and passed the necessary order under sec. 7.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
On December 22, 1951 the 1st respondent Society purchased
the leasehold interest in the said land from Sovaram’s
widow and
119
son after their suit was finally disposed of but after the
said notification under sec. 6 was issued. The 1st
respondent Society then filed the present suit against the
State of West Bengal, the said Swaika and other members of
the managing committee of the said school for a declaration
that the said notifications and the proceedings taken
thereunder were mala fide and null and void and for an
injunction against the Government taking possession of the
said land.
The Trial Court framed five issues but so far as this
appeal is concerned the relevant issue is Issue No. 3, viz.
"Is the plaintiff entitled 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 is issue, the Trial Court found that the 1st
respondent Society failed to establish the allegations as to
mala fides and abuse of 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 determination were (1) whether the
said acquisition proceedings were mala 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 the said land was not specifically
raised. Therefore, an attempt was made to. raise the
contention at the time of the heating 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 plaint by the 1st respondent Society.
The contention was sought to be raised because the
notification used the 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 purpose." The argument was
that the said words 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 notification was no.t in proper form and the
acquisition 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
Judge has answered it in the following terms :--
120
declaration under sec. 6 the point that
requires for consideration is whether the
executive authority did actually form an
opinion about the requirement of the land for
public purpose. So far as the present
declaration (Ex. 10A) is concerned it will go
to show that the land was required for public
purpose and it is conclusive in view of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
provisions of section 6 of the Land
Acquisition Act"
On this reasoning he dismissed the appeal. The District
Judge also agreed with the findings of the Trial Court that
the 1st respondent Society failed to prove mala fides on
the part of the Government or the misuse of its power under
the Act.
The 1st respondent Society filed 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: as to mala fides and abuse of power and (ii)
that the notifications 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 as
regards sec. 4 notification that it was valid and could not
be assailed.
As regards sec. 6 notification however the High Court
was impressed with the contention that after the amendment
of sec. 6 by Act 38 of 1923, which substituted the words
"when the’ Local Government is satisfied’ for the words
"whenever it appears to the Local Government", satisfaction
that the land is needed for a public purpose or for a
Company is a condition precedent for the declaration under
sec. 6 and that therefore the Government should make a
declaration "to that effect", i.e., of its satisfaction in
the notification itself. The 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 is required" instead of the words,
viz, "whereas the Governor is satisfied that the land is
required" the declaration did not show such ,satisfaction
and therefore it was not in proper form and could not be
said "to afford sufficient statutory or legal basis for
proceeding in acquisition." As regards the contention as
to mala fides and fraud on the statute the High Court held
that there was no evidence on the record from which it could
be inferred that there was collusion 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
mala fide. The High Court also observed that "prima facie,
there is no reason to differ from the findings made by the
courts below."
121
The question as to mala fides 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 on that question by the Trial
Court and the District Court against the 1st respondent
Society, the High Court could not have reopened their
concurrent finding except on the ground that it was
perverse or unreasonable or without 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 merely expressed a prima facie view 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 "prima facie" was
that the finding being concurrent was binding on it and
that no contention as to that finding being perverse etc.,
having been urged before it there was not even a prima facie
case to justify the reopening of that finding. Therefore,
the allegation as to mala fides or abuse of power by the
Government was conclusively negatived and Counsel for the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
1st respondent Society was therefore not entitled to canvass
that question before us in this appeal.
The 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 was 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 particular :land is needed for
a public purpose or for a Company, a declaration shall be
made" etc. The amendment of 1923 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 in the Act
which gave a right to persons interested in the land to be
acquired to file objections and of being heard thereon by
the Collector. The new section enjoined upon the Collector
to consider such objections 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 the objections
and the report of the Collector thereon was to arrive at its
decision and then make ’the declaration required
LI sup. CI/68-- 9
122
by sub-section 2, the appropriate words would be "when the
Local Government is satisfied" rather than the words "when
it appears to the Local Government". The other reason which
presumably led to the change ’in the language was to bring
the words in sub-see. 1 of see. 6 in line with the words
used in see. 40 where the Government before granting its
consent to the acquisition for a Company has to "be
satisfied" on an inquiry held as provided thereinafter.
Since the Amendment Act 38 of 1923 provided an inquiry into
the objections of persons interested in the land under s.
5A, section 40 also was amended by adding therein the words
"either on the report of the Collector under s. 5A or". Sec.
41 which requires the acquiring Company to enter into an
agreement with the Government also required satisfaction of
the Government after 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 Collector under s. 5A, if any.
These amendments show that even prior to the 1923 Amendment
Act, whenever the Government was required by the Act to
consider a report, the legislature had used the word
satisfaction on the part of the Government. Since the
Amendment Act 1923 introduced s. 5A requiring the Collector
to hold an inquiry and to make a report and required the
Government to consider that report and the objections dealt
with in it, the legislature presumably thought it
appropriate to use the same expression which it had used in
sees. 40 and 41 where also an inquiry was provided for and
the Government had to consider the report of the officer
making such inquiry before giving its consent.
But Counsel for the 1st respondent Society argued that
since the legislature has used different language from the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
one it had used earlier, it must mean that it did so
deliberately and because it considered the new words as more
appropriate. On the other hand, Counsel for the appellant
argued that the meaning of both the expressions is
synonymous. It is not necessary for us in this appeal to
construe the two expressions as on a construction of the
section we have come to the conclusion that it is not
necessary that satisfaction of the Government must ex facie
appear in declaration made under the section.
Sub-section 1 provides that when the Government is
satisfied 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. 5A is
undoubtedly a condition precedent to a valid declaration,
for, there can be no valid acquisition under the Act unless
the Government is satisfied that the land to be acquired is
needed for a public purpose or for a Company. But there is
nothing in sub-sec. 1 which requires that such
satisfaction need be stated in the declaration. The only
declaration
123
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, for 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 under sub sec. 1 and published
under sub-see. 2 which becomes conclusive evidence that the
particular land is needed for a public purpose or for a
Company as the case may be. The contention therefore that
it is imperative that the satisfaction must be expressed in
the declaration or that otherwise 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 St’ate
(1) 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.(2) 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 being thus no statutory forms
and see. 6 not requiring the declaration to be made in any
particular form, the mere fact that. the notification does
not ex facie show the Government’s satisfaction, assuming
that the words "it appears" used in the notification do not
mean satisfaction, would. not render the notification
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 Government was
satisfied was never challenged in the pleadings and no
issue on that question was sought to be raised. Even when
the 1 st respondent Society sought to amend its plaint it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
did so only to say that the notification did not state such
satisfaction and therefore did not establish such
satisfaction. The High Court no doubt thought that this
question was covered by Issue No.. 3 framed by the 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,
viz., for he said Girls’ School, but that
(1) I. L.R. 30 Cal. 36, 81.
(2) 32 I. A. 93.
124
the notification in the absence of words to that effect did
not prove that satisfaction. That being the position and no
issue having been raised on the factum of satisfaction, the
State Government was never called upon to lead evidence to
prove its satisfaction. The fact that sec. 5A inquiry was
held and objections were filed and heard, the fact that the
Additional Collector had recommended the acquisition and had
sent his report to that effect and the Government thereafter
issued sec. 6 notification would, in the absence of any
evidence to the contrary, show that the condition precedent
as to satisfaction was fulfilled. We are therefore of the
view that the High Court was in error when it held that sec.
6 notification was not in accord with that section and that
proceedings taken thereafter were vitiated.
We may mention that Counsel for the 1st respondent
Society cited certain authorities and also attempted to
canvass the issue as to mala fides 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 mala fides, we do not think
there is any justification for reopening the concurrent
finding of the Trial Court and the AdditiOnal District
Judge.
In the result, the appeal is allowed, the High Court’s
judgment and decree are set aside and the judgment and
decree passed by the Trial Court and confirmed by the Addl.
District Judge dismissing the suit of the 1st respondent
Society are restored. The 1st respondent Society will pay
to the appellant the costs in this Court as also in the High
Court.
V.P.S. Appeal allowed.
125