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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

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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.

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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

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             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

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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

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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

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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