1. This appeal is directed against an order of Sinha J. dated 5-1-1954, issuing a writ of mandamus upon the appellant (corporation of Calcutta as well as the State of West Bengal, directing them to forbear from proceeding to acquire the un-acquired portion of premises No. 67, Pipe Road within police station Watgunge, District 24-Parganas.
The facts are these: in 1927 the Corporation of Calcutta prepared a scheme for the development of the Mansatala area in Kidder-pore by construction of cross roads, providing for children's playground and widening of Manashatala Lane and at their instance the then Government of Bengal started acquisition proceedings in respect of an area of 15 Bighas and 11 cottas.
For that purpose, a declaration under Section 6 of the Land Acquisition Act, being Notification No. 12239 L. A. dated 29-7-1927 was published in the Calcutta Gazette on 4-8-1927. The declared area comprised within itself premises No. 67, Pipe Road (formerly 21, Dent Mission Road) measuring about 11 cottas with a two-storied building and other structures standing thereon which belonged to one Torab Ali Serang since deceased.
The scheme prepared by the Corporation provided not only for the acquisition of land for road alignment but also acquisition of surplus land for the purpose of recoupment. The Government, however, did not proceed with the acquisition of the entire area belonging to Torab Ali Serang and acquired only an area of 4 Cottas 4 Chittaks 20 sq. ft. which was covered by road alignment.
On 7-3-1932, the Land Acquisition Collector made an award in respect of the acquired area of which possession was taken by the Corporation of Calcutta and a street made thereon. On 4-4-1932, the said Torab Ali Serang applied to the Corporation of Calcutta for exemption of the unacquired portion from acquisition which was ultimately rejected on 29-8-1935.
Thereafter the Corporation of Calcutta requested the Land Acquisition Collector to furnish an estimate of cost for the acquisition of the un-acquired portion and according to the estimate of the Land Acquisition Collector, a sum of Rs. 17,760/- was deposited by the Corporation in the Reserve Bank of India on 29-7-1938.
A second application by Torab Ali Serang for exemption was rejected by the Corporation on 15-12-1939 and the Land Acquisition Collector was requested to deliver possession of the land by a letter dated 29-1-1940. Thereafter Torab Ali Serang died and his son Abdul Rahman who is one of his heirs filed a third application for exemption on 9-9-1940.
Nothing appears to have been done by the Corporation on this application and ultimately on 18-4-1949 the Land Acquisition Collector was requested to proceed with the acquisition. Thereafter the land acquisition proceeding was revived and a notice under Sections 9 and 10 of the Land Acquisition Act was served upon the heirs of the deceased Torab Ali Serang on the basis of the declaration published in the Calcutta Gazette on 4-8-1927.
The heirs of Torab Ali Serang, who are the petitioners in this case and respondents before us, then filed an objection before the Land Acquisition Collector, claiming that the revival in 1951 of a land acquisition proceeding started In 1927 was illegal and invalid. The Land Acquisition Collector gave effect to the objection and dropped the proceeding by an order dated 21-8-1951 against which the Corporation filed a representation before the Government.
The Assistant Secretary Land and Land Revenue Department, Government of West Bengal, by his letter No. 10732 L. A. dated 1-7-1952 pointed out to the Land Acquisition Collector that he had no jurisdiction to drop the proceeding, because under Section 48 of the Land Acquisition Act, it was only the Government which was competent to withdraw a proceeding, before possession was given.
He accordingly directed the Land Acquisition Collector to proceed with the acquisition of the remaining portion of premises No. 67, Pipe Road (formerly 21, Dent Mission Road). Against this order, the heirs of Torab Ali Serang moved this Court under Article 226 of the Constitution for a writ of mandamus upon the State of West Bengal as also upon the Corporation of Calcutta, directing them to forbear from acquiring the unacquired portion of premises No. 67, Pipe Road on the strength of Notification No. 12239 L. A. published in the Calcutta Gazette on 4-8-1927.
2. Sinha J. who heard the rule made it absolute and directed a writ to issue in terms of the prayer made by the petitioners, inter alia, on the ground that piecemeal acquisition was not permissible in the circumstances of the present case. In coming to his conclusion, Sinha J. has followed an earlier decision of this Court in the case of -- 'R. C. Sen v. Trustees for the Improvement of Calcutta' AIR 1921 Cal 340 (A).
Against this decision of Sinha J. the Corporation of Calcutta has filed one appeal which is Appeal from Original Order No. 87/54 andthe State of West Bengal has filed another appeal which is appeal from Original Order No. 201-54.
3. In the course of argument before us, a question arose as to whether the declaration under Section 6, Land Acquisition Act, as published in the Calcutta Gazette on 4-8-1927 was a valid declaration in view of the fact that it merely stated in the recital that it appeared to the Governor in Council that land was required to be taken by Government at the public expense for a public purpose whereas, according to Section 6 of the Land Acquisition Act, as amended by Act 38 of 1923 the proper recital should be that the Local Government was satisfied after considering the report made under Section 5A, Sub-section (2) that any particular land was needed for a public purpose.
Under Section 6, as it stood before the amendment of 1923, it was sufficient to state in the declaration that the Government was satisfied that any particular land was needed for a public purpose. The amendment of 1923, however, has introduced more stringent provisions. By Section 3 of the Amendment Act 38 of 1923, Section 5A, has been inserted after Section 5 of the Land Acquisition Act and Section 4 of the Amendment Act is-in the following terms:
'4. In Sub-section (1) of Section 6 of the said Act, for the words 'wherever it appears to the Local Government' the following shall be substituted, namely: 'When the Local Government is satisfied after considering the report, if any, made under Section 5A, Sub-section (2).'
4. In spite of this change in the law the language of Forms Nos. 5 and 6, as given in the Land Acquisition Manual has not been brought into conformity with the requirements of the amended section and follows the language of Section 6, as it stood before the amendment. In a proper case this omission might invalidate the declaration in the old language of S. S.
Fortunately for the acquiring authority, this result does not follow in the case before us. Mr. Gupta appearing for the appellant has pointed out that Act 38 of 1923 received the assent of the Governor General on 8-8-1923' and the Calcutta Municipal Act (Bengal Act 6 of 1923) was passed by the Bengal Legislature on 18-7-1923.
Section 475 of the Calcutta Municipal Act provides that any land or buildings which the Corporation are authorised by that Act to enquire may be acquired under the provisions of the Land Acquisition Act of 1894. Mr. Gupta has argued that the reference to the Land Acquisition Act in the 475th section must be to the Land Acquisition Act, as it stood on 18-7-1923, i.e. before the passing of the Land Acquisition Amendment Act 38 of 1923.
We are of the opinion that this argument must be accepted. In the case of -- 'Secretary of State v. Hindusthan Co-operative Insutance Society Ltd.' the Privy Council had to consider the question whether an addition to Section 26 of the Land Acquisition Act by Act 19 of 1921 affected the CalcuttaImprovement Act of 1911 which incorporated fay reference the Land Acquisition Act, 1894.
In dealing with that question the Privy Council made the following observations at page 152 :
'Where certain provisions from an existing Act have been incorporated into a subsequent Act no addition to the former Act, whiqh is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.'
These observations clearly establish that when the Bengal Legislature enacted Section 475 of the Calcutta Municipal Act it adopted the provisions of the Land Acquisition Act as it stood on 18-7-1923 and to quote again the words of the Privy Council
'nor in adopting the provisions of the Land Acquisition Act is there anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to that Act.'
For the purposes of the present case, therefore we must hold that the declaration issued in the language of old Section 6 of the Land Acquisition Act is valid.
5. On the merits of the appeal, the first ,point raised by Mr, Gupta is that under the Land Acquisition Act there is no rule against piecemeal acquisition. It is argued that once the declaration is made under Section 6, the Local Government is vested with the right to acquire the whole or any portion of the land in respect of which the declaration has been made in the course of one or more than one proceeding, unless the Local Government chooses to withdraw from the acquisition of the land under the provisions of Section 48.
It is pointed out that though this construction of the different provisions of the Land Acquisition Act may operate with hardship upon the rights of the citizens, the law must take its course without any regard to the consequences which might follow.
As against this extreme contention the respondents have argued that Sections 6 to 9 of the Act do not authorise the Government to acquire anything less than 'the land' in respect of which a declaration has been made under Section 6. In other words, the Act does not contemplate any dealing with the declared land except stealing with it as a whole.
It has also been argued that the clause 'the Local Government ........ shall direct theCollector to take order for the acquisition of the land' in Section 7 does not authorise the Government to issue more than one order for the acquisition of the land, that the word 'the land' in Section 8 means the land declared to be needed for a public purpose and that the public notice contemplated by Section 9(1) must be co-extensive with the declaration under Section 6.
Viewed in this light it would follow that the Land Acquisition Act contemplates one notice, one declaration, one proceeding & one award and that the declaration under Section 6 exhausts itself as soon as It has terminated in one award. The extreme contention advanced on behalf of the respondents has the merit of proceeding upon a literal construction of the different sections of the Statute; but we are of the opinion that both the extreme contentions are unsound. It is possible to conceive of cases where the land comprised in a declaration under Section 6 belongs to different individuals.
In such cases Section 10 authorises the Collector to require any person upon whom a public notice under Section 9 has been served, to deliver to him the name of every other person possessing any interest in the 'land or any part' thereof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise and Section 11 requires the Collector to enquire into the respective interests of all persons claiming compensation and to make an award as to the true area of the land, the compensation to be allowed to each and the apportionment of the compensation amongst all persons known or believed to be interested in the land.
As the true area of the land under the ownership of different persons and the compensation to be allowed to different persons must be different according to the nature and extent of their interest there can be no doubt that where the land declared under Section 6 belongs to different persons the Collector is required to make different awards in respect of each.
It is also possible to conceive of cases where though the land is under the ownership of a single individual the acquiring authority is, after the acquisition of a portion of the land has been completed, prevented by an injunction of a competent court or by a decision of a superior court from proceeding with the acquisition of the remainder.
In such cases also it would be impossible to hold that the declaration under Section 6 is exhausted with the acquisition of a portion of the land. The provisions in Section 7 of the Act to the effect that after the declaration under Section 8, the Local Government shall direct the Collector to 'take order' for the acquisition of the land contemplates only that the actual acquisition may be spread out over a number of years and does not authorise the Government to issue more than one order for the acquisition of the land.
But from the very nature of the case more than one award has to be made only in the two classes of cases referred to above, i.e. (a) where the land in respect of which the declaration under Section 6 has been made is under the ownership of different individuals and (b) where the acquisition proceeding in respect of the declared land (whether under the ownership of a single or different individuals) is held up by circumstances over which the acquiring authority has no control, e.g. by an injunction or the decision of a superior court and that injunction is subsequently dissolved or the decision overruled.
Subject to these two exceptions, the ordinary rule is that there can be no piecemeal acquisition in respect of land for which a declaration has been made under Section 6 of the Land Acquisition Act. This view is in accord with thedecision of Woodroffe and Walmsley JJ. in the case of AIR 1921 Cal 340 (A).
That was a case where after the acquisition by the Collector of a portion of the land declared under Section 6, Land Acquisition Act to be needed for a public purpose a question arose in this Court in connection with two other cases as to whether the compulsory acquisition of surplus land for the purposes of recoupment was authorised under the Calcutta Improvement Act.
Greaves J., in one case answered the question in the affirmative but a Division Bench consisting of Mookerjee and Cuming JJ. answered the question in the negative. -- 'Trustees for the Improvement of Calcutta v. Chandra Kanta Ghose' AIR 1917 Cal 445 (C). The decision of the Division Bench, until reversed, was binding on the Collector who accordingly kept further proceedings for the acquisition of surplus land in abeyance.
In the meantime on an appeal against the decision of Greaves J. another Division Bench dissented from the view of Mookerjee and Cuming JJ. and referred the question to a Full Bench. On 14-8-1917, the Full Bench overruled the decision of Mookerjee and Cuming, JJ., and held that the Calcutta Improvement Act authorised the compulsory acquisition of surplus land for the purpose of recoupment.
The decision of Mookerjee and Cuming JJ., was subsequently reversed by the Privy Council: 'Trustees for the Improvement of Calcutta v. chandra Kanta Ghose' AIR 1920 PC 51 (D), which adopted the same view as to recoupment as taken by the Full Bench. The decision of the Full Bench being an authoritative pronouncement on the question of recoupment the Collector on 7-11-1917, gave notice that he would acquire the remaining portion of the unacquired land covered by the declaration, under Section 6. Against this order of the Collector the plaintiff, R. C. Sen instituted a suit for a declaration that the Trustees for the Improvement of Calcutta having once acquired only a portion of the land included in the declaration under Section 6 were not entitled to revive the proceeding for the acquisition of the remainder.
Upon these facts Woodroffe J., with whom Walmsley J. concurred held:
'Had it not been for the judicial decisions to which I have referred I should have been disposed to hold that the proceedings were not valid as the Act refers only to one notice, one proceeding and one award to be given, taken and made regarding one holding and one ownership. But in this case the Collector was prevented from following this course by the decision of the High Court in AIR 1917 Cal 445(C)'.
In this case the declaration under Section 6 was published on 16-2-1915 and after the acquisition of a portion this proceeding was sought to be revived on 7-11-1911 after me decision of the Full Bench, whereas in the case before us the declaration was published on 4-8-1927 and the proceeding is sought to be revived on 1-7-1952 after the lapse of about 25 years.
To give effect to the extreme contentionurged on behalf of the appellant in the circumstances of the present case would lead to staggering consequences. Under Section 475 of the Calcutta Municipal Act compensation is payable on the basis of the market-value prevailing, on the date of the publications of the declaration under Section 6. To allow the Corporation of Calcutta to compulsorily acquire the remaining portion of the land in 1955 on the strength of a declaration made in 1927 will be equivalent to allowing it to purchase the land in 1955, at a price prevailing in 1927.
It is well known that land-values have immensely increased during this period; but the owners will not get the benefit of this increase. To hold that piecemeal acquisition is permissible under all circumstances will mean this that the Government may make a declaration under Section 6 to-day and then proceed to acquire the land in parcels at the intervals of fifty, hundred and two hundred years.
This is certainly not a consequence intended by the Land Acquisition Act. For these tea-sons I am unable to accept the first point raised on behalf of the appellant.
6. Mr. Gupta has argued in the second place that assuming that there is a rule against piecemeal acquisition under the Land Acquisition Act, since that rule is not of universal application, it should not be applied to the circumstances of the present case. It is urged that in the present case the proceeding for acquisition was kept in abeyance not on account of any inaction on the part of the requiring body, viz., the Corporation of Calcutta, but on account of successive applications for exemption filed by Torab Ali Serang and his heirs, the abnormal situation created by the second World War and the supersession of the Corporation, ot Calcutta by West Bengal Act 8 of 1948.
It is accordingly argued that since the requiring body was prevented from proceeding with the acquisition on account of circumstances beyond its control, the present case should be treated as another exception to the rule against piecemeal acquisition. This argument, though plausible, does not bear scrutiny.
It is no doubt true that if the acquisition proceeding has to be suspended on account of circumstances over which the acquiring authority has no control, the rule against piecemeal acquisition will not apply; but we are far from satisfied that that was the case here, Section 311 (1) of the Calcutta Municipal Act gives the owner of the land the right of making an application to the Corporation requesting it to abandon the acquisition in consideration of payment by the applicant of a fee to be fixed by the Corporation.
Section 311 (2) requires the Corporation to admit every such application if it reaches them before the time fixed by the Collector under Section 9 Land Acquisition Act for making claims in respect of the land. Section 311 (3) imposes upon the Corporation the duty of informing the Collector forthwith in case the Corporation decides to admit the application, and the Collector shall thereupon stay proceedings for the acquisition of the land for such period as the Corporation may request.
In the case before us the Collector made his award on 7-3-32 and the first application for exemption was filed by Torab Ali on 4-4-1932, which must have been long after the time fixed by the Collector under Section 9, Land Acquisition Act for making claims.
There was therefore no statutory duty on the Corporation to admit the application and if they did so they did it voluntarily. Then again, there is nothing on the record to show that the Corporation ever requested the Collector to stay the acquisition proceeding under Section 311 (3).
Sub-section (3) of Section 311, Calcutta Municipal Act makes it clear that the Corporation can ask the Collector to stay the acquisition proceeding only for a limited period and not indefinitely. As there is nothing to show that the Corporation gave any intimation at all to the Collector, the question of staying the acquisition proceeding for a limited period does not arise.
It is accordingly idle to contend that the acquisition proceeding was kept in abeyance on account of the application for exemption. If the first application for exemption be of no assistance to the appellant, the second and the third applications which were filed long afterwards are of no avail.
The abnormal situation created by World War No. II which has been put forward as the second reason for the suspension of the acquisition proceeding cannot also in our opinion be accepted as sufficient for the purpose. It appears that the Corporation deposited a sum of Rs. 17,760/- on 29-7-1938 with the Reserve Bank of India according to the estimate of the Land Acquisition Collector as being the amount required for the purpose of acquiring the unacquired portion of the land.
As this deposit was made more than a year before the commencement of World War No. II, we are unable to hold that the outbreak of the war had anything to do with the proceeding for acquisition. If the Corporation had acted with reasonable diligence, the entire proceeding would have been completed before the outbreak of the war. The third reason, i.e., the supersession of the Corporation by West Bengal Act, 8 of 1948, which has been set up for the suspension of the proceeding, is equally unconvincing.
In the first place, it does not afford any explanation of the delay of nearly ten years which occurred between 29-7-1938 when the Corporation made the deposit with the Reserve Bank of India and the passing of the West Bengal Act 8 of 1948 by which the Corporation was superseded.
In the second place, even after the supersession of the Corporation, an administrative head was appointed by the State Government to carry on the administration of the Corporation and there is no reason why he did not take prompt action in the matter. For these reasons we are unable to hold that the suspension of the proceeding for acquisition for a period of twenty-five years was due to circumstancesbeyond the control of the Corporation and we must attribute this delay wholly to the deplorable inaction on the part of the requiring body.
7. As all the points raised by the appellant fail this appeal must be and is dismissed with costs, hearing fee 10 G.Ms.
8. Nothing said in this judgment will prevent the Corporation of Calcutta from starting; a fresh proceedings for the acquisition of the unacquired portion of the land, if they are so advised.
9. I have had the advantage of being able to read in advance the judgment just delivered by my learned brother. I agree, with him entirely as to the order proposed by him and generally as to the reasons given therefor, but in view of the great importance of the question, of law involved in the case, I should like to add a few words of my own.
10. The question has arisen out of certain land acquisition proceedings taken or rather resumed at the instance of the Corporation of Calcutta. The Land Acquisition Act does not directly provide for acquisition of land for the purpose of a body like the Corporation, although such a provision may be said to be implied in Section 50 of the Act.
But as regards the Corporation of Calcutta, a direct provision is to be found in the Calcutta Municipal Act which, by Sections 310 and 468, autho--rises the Corporation to acquire land and buildings for certain specified purposes and by Section 475 provides that any land or buildings which the Corporation are authorised by the Act to acquire, may be acquired under the provisions of the Land Acquisition Act.
There can be no question of the Corporation themselves proceeding to make a compulsory acquisition of land, although the language of both Sections 310 and 468 is that 'The Corporation may acquire.' Like any other local authority or companies, they must approach the State Government and ask for an acquisition to be made under the provisions of the Land Acquisition Act for them and at their cost.
The validity of any acquisition proceedings undertaken at the instance of the Corporation must therefore be judged solely by the provisions of the Land Acquisition Act.
11. The position in the present case is that at the instance of the Corporation who were proceeding under Section 310 of the Calcutta Municipal Act a declaration under Section 6 of the Land Acquisition Act was made and published as long ago as in 1927 in respect of an area of land measuring 15 Bighas and 11 Cottas. That area included a holding of about 11 cottas, then owned by the predecessor-in-interest of the petitioners, one Torab Ali Serang.
Of the area covered by the declaration, only about 24 cottas were acquired at the time, the proceedings terminating in 1932. Those 24 cottas included 4 cottas. 4 chittaks and 20 square feet of Torab Ali's holding. Subsequently, but not till 1951, the proceedings were revived and notices were issued for the acquisition of theremainder of the holding on the strength of the declaration made and published in 1927.
12. The question which has arisen for decision out of the above facts may be stated in the following way: after a declaration has been made under Section 6 of the Land Acquisition Act in respect of a certain area of land, is it open to Government to make the actual acquisition of the land by portions, by successive proceedings at different points of time or, in any event, is it open to them to acquire in that manner such part or parts of the land as may be held in a single or the same ownership?
13. The practical importance of the question arises out of the fact that delayed acquisition of portions of the land may affect the compensation payable for them adversely to the persons entitled to compensation. Section 23(1), 'first' of the Land Acquisition Act provides that for the purpose of determining the compensation to be awarded, the market-value to foe taken for the land shall be the value at the date of the publication of the notification under Section 4(1).
For acquisitions for the Corporation of Calcutta, the Calcutta Municipal Act advances the date to a certain extent and provides by Section 475 that the market value to be taken into account shall be the value at the date of the publication of the declaration under Section 6 of the Land Acquisition Act. But whether the date be the one or the other, the effect of the law is to freeze the market-value, as it were, as on a date at an early stage of the proceedings and make that the value for the purposes of computing the compensation, whenever the land may be actually acquired and the award made.
If the interval between the publication of the notification or the declaration and the actual acquisition be long and the market-value decreases in the meantime, the loss will fall on the owner and other persons interested in the land.
It is true that if the value increases, the disadvantage will be of the acquiring authority, but whether they will suffer the loss or not will depend on themselves and they can always avert it by abandoning the acquisition or not proceeding with it till prices again fall.
There is no room for such election in the case of the owner or other persons interested in the land. A delayed acquisition must cause them inconvenience in other ways as well, because the land will be left in their possession till an award has been made and with the threat of acquisition hanging over it, it will be an embarrassment rather than an asset.
Persons interested in an area of land notified for acquisition may therefore be greatly prejudiced if, after the publication of the notification and the declaration, a portion of it is acquired in the ordinary course but the remainder is not acquired till after the lapse of a long period of time or is acquired by fractions at successive date, widely separated from one another.
14. It appears that the Legislature has taken some note of the prejudice that may be caused by delay in acquisition and made someprovision to compensate for it. Clause sixthly ot Section 23(1) of the Land Acquisition Act provides that in determining the amount of compensation, account must be taken of the damage, if any, resulting from the diminution of the profits of the land between the date of the publication of the declaration and the time of the Collector's taking possession of the land.
Such diminution may occur in the case of premises ordinarily let, when the letting value of it is affected by the threat of acquisition. Proviso (i) to Section 475 of the Calcutta Municipal Act lays down that if the Collector does not make an award within two years from the date of the publication of the declaration, the owner of the land or building shall be entitled to receive compensation for-the damage suffered by him in consequence of the delay.
Since he is entitled, in no event, to receive as the price of the land or building anything more than the price on the date of the publication of the declaration, the damage contemplated can perhaps only be the loss of interest caused by the delay in making the award and the payment. These provisions, however, cannot be said to authorise delay.
It is true that the Calcutta Municipal Act seems to contemplate a delay of at least two years, but if the Land Acquisition Act does not itself authorise such delay, no provision in the Calcutta Municipal Act can create authority for it or liberty. Clause sixthly of Section 23(1) of the Land Acquisition Act to which I have referred seems to contemplate only the normal delay in carrying out an acquisition and not delay caused by abstention from undertaking it.
15. But the question of delay is really not material to the question of the validity of piecemeal acquisition. I have digressed to refer to it only for explaining the practical reason behind the objection to acquisition in that manner. It Is not, now ever, that delay may occur only when an acquisition is made piecemeal. The Land Acquisition Act does not lay down any time limit within which, after the declaration under Section 6 has been published, the proceedings for the acquisition of the land must be commenced or completed.
Delay in making an acquisition may therefore occur not only when a portion of the land concerned is acquired first and the remainder of a further portion is acquired at a later date, but also when the acquisition, though it covers the whole of the land, is not undertaken till after the lapse of a considerable time from the date of the publication of the declaration.
Whether or not the Act contemplates that the acquisition proceedings should be commenced within a reasonable time, is another matter, but since delay is not peculiar to piecemeal acquisition, it cannot be special ground of objection to the validity of such acquisitions that they involve delay. Indeed, piecemeal acquisition may not in a particular case taken more time than would be taken by a single proceeding for the acquisition of the whole land.
Thus, if delay invalidates an acquisition, It will invalidate some piecemeal acquisitions but not others and, equally it may invalidatesome acquisitions covering the whole of the land. If piecemeal acquisition is to be shown to be invalid because it is piecemeal, the ground must be something arising out of its piecemeal character and something other than the delay it may entail.
16. The ground being thus cleared for a consideration of the precise question of law, it should also be cleared as to the position on the facts. If the piecemeal acquisition in the present case had been caused by anything done by the Petitioners or their predecessor-in-interest, then, whether or not the Corporation was bound to pay regard to it, I would have held that the Petitioners were entitled to no relief on an application under Article 226 of the Constitution, because they could not be allowed to create an irregularity and then make a grievance of it.
But before the fractional acquisition was made in 1932, Torab Ali had made no application to the Corporation and they acquired only a portion of his land included in the declaration entirely of their own accord. If the Corporation always intended to acquire the whole 11 cottahs of Torab Ali's land and if piecemeal acquisition be unwarranted by law, then not only is the present attempt to acquire the residue of the land illegal, but an illegality also occurred when a partial acquisition was made in 1932.
The acquisition of 4 cottahs and odd of the land, then made, can be sustained only on the basis that as respects the remainder of 5 cottas and odd, the acquisition was abandoned. If it was not abandoned, then the question to be decided is whether the Corporation could, at their own choice, acquire the land by portions and whether such piecemeal acquisition is warranted by the Land Acquisition Act.
To the decision of that question, the applications made by Torab Ali and his successor-in-interest subsequently to the award of 1932 appear to me to be wholly immaterial, because they were only applications requesting the Corporation to desist from the acquisition of the remainder of the land after they had acquired a part and not applications by which the Corporation were made to forbear from acquiring the whole of the land in the beginning and by which a partial acquisition in the first instance was caused.
The applications appear to have been treated by the Corporation as applications made under Section 311 (1) of the Calcutta Municipal Act, but it is difficult to see how they could have been so treated, since there was no question here of acquisition of any further land under Section 301 (2) of the Act after some land had been acquired under Section 310 (1).
The whole of the land was included in the declaration under Section 6 and what was made in 1932 was a partial acquisition for which the applications, which were all made after the award, were in no way responsible. The present attempt is to acquire the remainder of the land on the strength of the declaration of 1927, the Corporation having acquired only a portion of that land in 1032 at their own choice,
17. The short question for decision therefore is whether piecemeal acquisition, as such, is unwarranted by the Land Acquisition Act and per se illegal. In my opinion, the answer to that question must be in the affirmative.
18. I should, however, like to explain what piecemeal acquisition in the sense in which we are considering the matter really means. It does not mean splitting up of the land covered by the declaration under Section 6 into separate units for the purpose of separate award cases according as separate bodies of persona may be respectively interested in them.
An area of land covered by a declaration under Section 6 may comprise different plots of land owned by different persons or more than one plot owned by the same person. In such a case, claims with regard to the several' plots have necessarily to be considered separately and separate awards have necessarily to be made. If there be any piecemeal acquisition In such cases at all, it is piecemeal only in the lateral sense, if I may use that expression, the Collector proceeding at the same time as respects the whole area but making the acquisition in parts by a series of parallel proceedings for reasons inherent in the composition of the land.
The acquisition of no part of the land is postponed: It is only an acquisition of the whole land by parts in stead of as a single unit and not an acquisition by stages at successive points of lime. When the area covered by the declaration is composed of different holdings or units, held in different ownerships and interests, a plurality of proceedings after the stage of Section 9 of the Act is forced by the very nature of the land.
In such a case, there is really no piecemeal acquisition at all, because the main proceeding initiated in a proceeding to acquire the whole and such splitting-up as occur at the later stages are only steps which are found necessary to be taken in the course and for the purpose of carrying out the intended acquisition.
The piecemeal acquisition which we are considering is of a different type. It occurs when after the declaration under Section 6, the acquiring authority takes up only a portion of the land for immediate acquisition, keeps the acquisition of the remainder in abeyance and seeks to resume the acquisition as respects the remainder or a portion of it at some future date.
The portion left out in the first instance may be a unit or units separate from the portion then acquired or it may be a portion of the same unit. The form in which the question has arisen in the present case is whether the acquiring authority can, at their pleasure, acquire first a portion of a particular holding covered by the declaration and then acquire the remainder of the same holding after the lapse of a considerable time, in this case about 25 years.
As I have already explained, the question of the delay is not really material: what has to be considered is whether an acquisition canat all be made by stages and split up in the manner attempted.
19. In my opinion, the Land Acquisition Act lends no countenance to the procedure of a portion of a holding, included in a declaration under Section 6, being acquired in the first instance and the remainder or a further portion being acquired at a future date at the option of the requiring or acquiring authority.
As was said in the case of AIR 1921 Cal 340 (A), the Act contemplates only one notice, one proceeding and one award to be given, taken and made regarding one holding and one ownership. Section 6 of the Act requires a declaration to be published, stating that a particular land is needed for a public purpose and giving the particulars of the land.
The land is to be acquired 'in manner hereinafter appearing' and therefore in no other manner. Section 7 then requires the State Government to 'direct the Collector to take order for the acquisition of the land', that is to say, to make the actual acquisition and take all necessary steps in that behalf.
Mr. Gupta contended that it was at that stage that Government could split up the land and in giving directions to the Collector, they might direct him to acquire for the present only a portion. I am unable to read that meaning in Section 7. What the land is, for the acquisition of which the Collector is to be directed to take order, is stated in the section itself in its earlier part.
The section says that 'whenever any land shall have been so declared to be needed for a public purpose', the Collector shall be directed to take order for the acquisition of 'the land', that is, that land which has been declared to be needed and not anything less,
Section 8 then brings the Collector on the scene of the actual acquisition and he is required by the section to cause the land to be marked out and measured. Again it is 'the land'. The next section, Section 9, places it beyond doubt that the Collector is intended to deal with the whole of the land covered by the declaration.
It requires the Collector to give public notice of Government's intention to take possession of 'the land' and to invite claims to compensation for all interest in 'such land' and then it proceeds to provide that the notice 'shall state the particulars of the land so needed'.
The expression 'so needed' has no antecedent in the section itself, but it is obviously linked with the larger phrase 'whenever any land shall have been so declared to be needed lor a public purpose', occurring in Section 7. It is thus perfectly clear that the land which the Collector must be directed under Section 7 to proceed to acquire and the land of which the public notice to be issued by him must stage the particulars, is the land the whole land which has been declared to be needed for a public purpose.
There is no room for any reduction of the land, except by abandonment of the acquisition under Section 48(1) In respect of a portion thereof and certainly no room at all for keeping the acquisition of a portion in abeyance-. Except when the acquisition of a portion is abandoned, the notice must cover the whole of the land and claims for all interests in all parts of it must be invited.
It is only when the claims have been received that it may transpire that different parts of the land are held in different ownerships or, to put it in another way, separate groups of interests are attached to separate parts and then it may be found necessary for the practical convenience of making awards to split up the whole into parts, according to the interests attached to them, and make them the subjects of separate awards.
Such splitting up will not detract from the extent of the acquisition which will remain an acquisition of the whole. To proceed with the sections, it is true that Section 10 empowers the Collector to require any persons known to be interested in the land to furnish a statement as to 'every other person possessing any interest in the land or any part thereof', but the reference to 'any part' does not suggest that the acquisition can be limited to a part of the land. It only means that persons known to be interested may be called upon to supply information regarding other interests which other persons may have along with them in the whole or any part of the land 'as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise'. Section 11 then deals with enquiries by the Collector and the award to be made by him and it is clear from the reference to Sections 9, 8 and 4 that enquiry and award as respects the whole of the land are contemplated.
The section provides that the award shall stage the area of the land and the compensation allowable therefor. Where the area covered by the declaration under Section 6 comprises separate units, to each of which a different group of interest are attached or of units held by the same person in separate rights, there will necessarily be more than one award and each award will state the area to which it relates and the compensation allowed for it.
But there can be no question of any part of the land, covered by the declaration under Section 6 and not abandoned, being left out. The several awards must be read together as component parts of a composite award will cover the whole of the land by the totality of its constituent parts.
There is no room whatsoever in the scheme of the Act for the acquisition of an area of land covered by a declaration under Section 6 In portions and by stages and by separate proceedings at successive points of time, still less any room for such acquisition of a single holding, held in the same ownership.
20. Mr. Gupta referred to the decision of the Judicial Committee in the case of -- 'Prag Narain v. Collector of Agra' and contended on its authority that there could be more than one award in respect of an area of land declared under Section 6 of the Act as needed for acquisition.
That proposition need not be disputed and I have already explained the circumstances inwhich a plurality of awards may not only be permissible but may also be necessary. The Judicial Committee in the case cited observed that the Land Acquisition Act did not contemplate that where more than one person were interested in a parcel of land, there should be more than one award relating thereto and then added the following observation:
'Their Lordships do not by this mean that the whole of the land at any time to be acquired under the Act must necessarily be dealt with in one award'.
Mr. Gupta contended that the theory of one notice, one proceeding and one award, propounded in the case of AIR 1921 Cal 340 (A), could not bear scrutiny and since it was possible that there should be more than one award in respect of an area of land covered by a declaration under Section 6, piecemeal acquisition could not be impugned on the ground that it involved more than one award.
But the rule in the decision in AIR 1921 Cal 340 (A), was expressly limited to the case of a single holding under one ownership, expressly excluding the case of the declared land comprising several holdings belonging to different owners and even the Judicial Committee said that with regard to any one piece of land there could be no more than one award.
The real point in the objection against piecemeal acquisition, however, is not that it involves a plurality of awards, but that it involves a succession of awards, each relating to a portion of the same land held in the same ownership, for which there is no warrant in the Act.
Nor is there any warrant for successive acquisitions by successive proceedings of different portions of the land covered by a declaration under Section 6, although such portions may belong to different owners.
There may be, and indeed have to be, separate award cases and separate enquiries with regard to claims concerning different parcels of land belonging to different owners, where the land covered by declaration comprises such parcels. Such separate enquiries may also be needed in respect of separate holdings owned by the same person.
But such separate cases are all parts of one acquisition proceeding, stemming out there from after the stage of Section 9 of the Act, carried on simultaneously as far as possible and covering between themselves the entirety of the land when they terminate in awards.
The plurality of awards made in such circumstances, which is coupled with simultaneity, can furnish no argument in favour of separate acquisition proceedings, each relating to a portion of the land, initiated at successive points of time and producing a succession of awards.
21. Mr. Gupta also pointed out that after a declaration under Section 6 of the Act had been published, no part of the land covered by the declaration could be released unless Government abandoned its acquisition under Section 48(1) and he contended that where Government acquired only a portion of the land in the first instance but did not abandon the acquisitionof the remainder, it necessarily remained available for acquisition and could be validly acquired.
The answer to that argument is that since piecemeal acquisition is unknown to the Act, the acquisition of only a portion in the first instance would itself be invalid unless it was presumed that the acquisition of the remainder was intended to be abandoned and since the portion first acquired would not be given up but would be sought to be retained as validly acquired, the acquisition of the remainder must be deemed to have been abandoned.
22. It was also contended that even as respects a single holding in one ownership, a single award was not an absolute rule and that the case of -- 'R. C. Sen v. Trustees for the Improvement of Calcutta (A) (ante) was itself an illustration that there could be more than one award even in such a case and that at successive points of time. But in that case the acquiring authority did not make a partial acquisition in the first instance at their own choice.
After the declaration under Section 6 had been published, the right of acquisition under the Calcutta Improvement Act came to be interpreted by a Division Bench of this Court in another case and it was found that under the interpretation given, the whole of the land covered by the declaration could not be acquired.
Thereupon, the acquisition was adjusted to the law, as declared, and only the portion actually acquired for the execution of the scheme in land, which was all that had been held to be permissible, was acquired. Subsequently, the decision of the Division Bench was over-ruled and thereupon the acquiring authority resumed the acquisition and proceeded to acquire the remainder of the land.
It will be seen that the acquiring authority always intended to acquire the whole of the land covered by the declaration, but while proceeding to do so, they were interrupted by the operation of a force to which they were bound to yield. When the intervention of the force was removed, the acquiring authority then freed from the restraint, resumed and completed the acquisition, but as a portion of the land had already been acquired, a second award had necessarily to be made. There was thus no piecemeal but only acquisition, interrupted in the middle and bifurcated by the force of a supervising factor.
23. There is no dispute in the present case that in 1932 the Corporation limited the acquisition to a portion of the land at their own choice and that they are now trying, on the basis of the declaration of 1927, to acquire the remainder of the land by means of a second proceeding.
Since the Collector was asked to furnish an estimate of 'the cost of acquisition of the remaining portion' of the land and a sum of Rs. 17,760/- was deposited in 1938 as the estimated cost, it is obvious that a second proceeding, limited to the residue of the land, wascommenced in 1951. In my view, the proceeding is utterly illegal.