1. The two Rules issued at the instance of the State of West Bengal are directed against an order of the Judge at Asansol whereby in deciding the question as to which of the two notices issued under Section 4(1) of the Land Acquisition Act of 1894 would govern the determination of market value of the acquired lands under S. 23(1) of the Act, he came to the finding that the date of the later notification would be the date with reference to which the market value should be assessed in the two cases concerned.
2. L. A. Reference Cases 121 of 1961 and 221 of 1961 were started on the prayer of the claimant--O.P. in the court of the Judge at Burdwan. The claimant moved the High Court under Article 227 of the Constitution of India and obtained an order directing the judge to investigate the question as to which of the two notifications under Section 4(1) of the said Act would prevail for the purpose of determination of the market price of the acquired lands in the cases concerned. The learned judge thereafter took up the question as a preliminary issue in the two cases, and arrived at the finding that the later notification had the effect of superseding the earlier one. This he did on the strength of the case, State of Madras v. Balaji Chettiar : AIR1959Mad16 . It is the correctness of this finding that is challenged by the learned Government pleader who contends that the trial judge acted illegally and with material irregularity in exercise of his jurisdiction in the matter.
3. It appears from the record that on January 12, 1955 the State Government issued a notification under Section 4 of the said Act in connection with the proposed acquisition of land for the development of industries in the Durgapur area in the District of Burdwan and authorised a survey within an area described by boundaries mentioned in the notification.
4. On November 12, 1956 another notification under Section 4 of the Act was published and this notification specified by C. S. Plot Nos. certain lands which were proposed to be acquired and it further stated that a plan of the land may be inspected in the office of the Administrator Durgapur Project as well as in that of the Collector of Burdwan, The notification stated that the provisions of Section 5A of the Act shall not apply to the waste or arable lauds out of those mentioned therein and this was done by virtue of the power vested in the State Government under Section 17(4) of the Act. Objection was invited to the acquisition of such lands covered by the notification as were not waste or arable. A similar notification in respect of certain other lands was published on June 3, 1958.
5. Mr. Chakravarti, appearing on behalf of the State of West Bengal urged that the question of priority between two notices under Section 4 of the Act did not come up for decision in the Madras case relied on by the learned judge below and that anything stated in that judgment on such a question is in the nature of obiter and would be no authority for the purpose for which it was accepted by the trial Judge, it would appeal from the reported decision in the case abovethat only one notification under Section 4(1) of the Act was issued in that case and as such the observation therein that where there are successive notices under Section 4, the date of the last notice is the date with reference to which the market value has to be fixed, is merely an expression of opinion without any consideration of the necessary material aspects of the matter. The observation above was sought to be buttressed by a Privy Council decision in Ma Sin v. Collector of Rangoon, AIR 1929 PC 126 and that in Akilandammal v. Special Deputy Collector, Vm. T. Railway, Trichinopoly, 1932 Mad WN 853. In the Privy Council case above a declaration under Section 6 L. A. Act was published on May 31, 1923 in respect of certain lands of the appellant and certain other lands belonging to other people. On October 6, 1923 a further declaration under Section 6 was published which omitted the lands of the other people and retained only the lands of the appellant as mentioned in the earlier declaration, and announced at the same time that the former declaration was cancelled. The Privy Council held that as the earlier notification was cancelled by the Government the only notification which gave right to take the land of the appellant was the second notification and therefore that date must be the date with reference to which the valuation was to be assessed. It may be mentioned that under Section 23(1) as it then stood the relevant date was the date of the declaration under Section 6 and not the date of the notification under Section 4(1) of the Act.
6. In Akilandammal's case, 1932 Mad WN 853 (supra) a notification under Section 4(1) of the Act was issued on May 22, 1923. Thereafter Act XXXVII of 1923 by amending the L. A. Act inserted Section 5A thereby giving the parties the right to object to the acquisition and the Government issued another notification under Section 4(1) to the same effect on September 22, 1925. The court found that in the facts of that case it was evident that the Government thought fit to supersede the old notification and to issue another and that in the circumstances it is the date of the later notification that should determine the assessment of market value under Section 23(1) of the Act. It is evident from the facts of that case that the second notification was prompted by the amendment of the L. A. Act with the object of enabling the interested parties to file objection, if any--a right that was conferred by the recent amendment of the Act. No such considerations as were present in the above two cases are present in the cases before us and in our opinion neither the case referred to by the learned L. A. Judge nor the other two cases mentioned above would go to support the absolute proposition that whenever there are successive notifications under Section 4(1) of the Act, the dale of the later or the last notification would govern the assessment of the market value under Section 23(1) of the L. A. Act.
7. Mr. Mitter appearing on behalf of the opposite parties urged that the first notification dated January 12, 1955 is not a proper notification under Section 4(1) of the Act at all as the same did not pecify correctly the area within which lands were proposed to be acquired and is further vague to a degree. Section 4(1) of the L. A. Act enjoins a notification which should mention the 'locality' within which land is proposed to be acquired. The term 'locality' is itself rather vague and vagueness is therefore, necessarily implicit in the contemplated notice. Section 4(1) of the Act does not require the land to be defined and identified. The specification and ascertainment of the land is to be done subsequently by proceedings under Sub-section (2) of the section. What the notification under the section is required to do is to specify the 'locality' and the 'locality' in the notification dated January 12, 1955 was described in the second paragraph thereof which gives the boundaries of the area where the survey necessitated under Sub-section 2 of the section was to be carried on.
8. It was next urged that the first notification was never acted upon and that is why the two subsequent notifications were issued in the case specifying the lands that wore proposed to be acquired. It would appear from these two subsequent notifications that the earlier one instead of not having been acted upon had been acted upon very much. These show that the area had been surveyed and that a plan of land to be acquired had also been prepared and the lands proposed to be acquired had been identified and ascertained. All these are required to be done under Sub-section (2) of Section 4 of the Act. It is the declaration to be issued under Section 6 of the Act which is required to particularise the land to be acquired and to arrange for inspection of the plan that might have been prepared. When we find nothing in the earlier notification to which objection can be taken, when we find that action had been taken in the case in pursuance of authority taken by the Government under Section 4(2) of the Act on the strength of that notification and necessary particulars for a declaration under Section 6 had been gathered, it would not do to ignore it on the simple ground that a subsequent notification was issued to the same effect. In our judgment the subsequent notifications are thereby supplemented to the earlier and would as such not be relevant for the purpose of assessment of market value under Section 23(1) of the L. A. Act. We cannot, therefore, give effect to the argument of Mr. Mitter that the later notifications had the effect of cancelling the earlier one or that the earlier notification was never acted upon.
9. It was sought to be argued that the first notification was never published at convenient places in the locality as required by Section 4(1) of the Act. This point was never raised before the learned L. A. Judge. The question of publication in accordance with law is a pure question of fact which cannot also be raised in the present proceeding.
10. It was next contended that in some L. A. cases arising out of the notifications in the present cases, market value under Section 23(1) of the Act was assessed by the L. A. Collector with reference to the dates of the later notifications. If that was done, it was so done by mistake and was the result of a dis-appreciation ofthe legal position. No question of res judicata or estoppel being involved in the case, the claimant would have no right to, demand assessment of market value on a basis which is found by us to be erroneous. A mistake arising out of mis-appreciation or misapplication of the law in one case would not justify an act not countenanced by law in another case. We find no substance in this contention on behalf of the O. P.
11. On a consideration of what has been stated above we find that the first notification dated 12-1-1955 was a quite valid notification under Section 4(1) of the L. A. Act in the present cases and that assessment of market value should be made with reference thereto. The learned L. A. Judge acted illegally and with material irregularity in the exercise of his jurisdiction in arriving at the finding contrary to the above. The Rules are accordingly made absolute and the order moved against is set aside. The learned L. A. Judge will decide the case in accordance with law in the light of our finding above.
Parties will bear their own costs in these Rules.
12. I agree.