Skip to content


Gurudas Saha Vs. First Land Acquisition Collector of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberO.S. No. 70 of 1953
Judge
Reported inAIR1957Cal495
ActsLand Acquisition Act, 1894 - Sections 4, 4(1), 4(2), 5A, 6, 38, 38(2), 40 and 40(1); ;Evidence Act, 1872 - Section 14
AppellantGurudas Saha
RespondentFirst Land Acquisition Collector of Calcutta and ors.
DispositionApplication dismissed
Excerpt:
- .....commissioners. prior to the sale, however, a notification was published under section 4 of the land acquisition act, being notification no, 2860 l. a. dated 11-2-53 in the calcutta gazette (extraordinary) dated the 11th february, 1953. a copy of this notification is annexed to the petition and marked with the letter 'b'. the relevant part of the notification runs as follows:'whereas it appears to the governor that the land is likely to be required to be taken by government at the expense of the ram krishna mission for the expansion of the students home known as ram krishna mission asram in ward no. v of the calcutta municipality of the city of calcutta, it is hereby notified that for the above purpose a piece of land comprising premises no. 20, jadulal mullick road, calcutta..... is.....
Judgment:

Sinha, J.

1. The facts in this case are shortly as follows :

2. The petitioner and his co-sharers were the proprietors of premises No. 20 Jadulal Mullick Road, Calcutta, being a five-storeyed house constructed on land of the approximate area of 4 cottahs 10 chattaks. The house was constructed in 1948, and the petitioner Gurudas Sana had 1/3rd share in the same. In or about 1951, the petitioner filed a suit in this Court for partition of the joint estate, being Suit No. 901 of 1951. On the 19th February, 1952 a decree was passed therein whereby it was declared that the said premises are incapable of partition by metes and bounds and so it was to be sold by a Commissioner under the provisions of the Partition Act, by public auction to the best purchaser, with liberty to the parties to bid at such sale. Under the said decree, two solicitors of this Court were appointed joint Commissioners and Receivers for the purpose of carrying out the directions in the decree. On the 4th February, 1953 they advertised sale of the property to take place on the 7th March, 1953. The Ram Krishna Mission, a well-known religious and charitable institution, had an office contiguous to the premises at 18, Jadulal MuIIick Road. By letter dated the 17th January, 1953 it made an offer to the joint Commissioners to purchase the said premises No. 20, Jadulal Mullick Road, by private treaty, for a consideration of Rs. 2,50,500. It is stated that the Commissioners were willing to accept the offer but the parties objected and on 'the 22nd January, 1953 the Mission was informed that the offer could not be accepted. Thereafter, the premises were put up for sale by public auction on the 7th March, 1953 and the petitioner Gurudas Sana, made the highest bid, viz., Rs. 2,50,000, which was accepted. The petitioner then entered into an agreement with the Joint Commissioners. Prior to the sale, however, a notification was published under Section 4 of the Land Acquisition Act, being Notification No, 2860 L. A. dated 11-2-53 in the Calcutta Gazette (Extraordinary) dated the 11th February, 1953. A copy of this notification is annexed to the petition and marked with the letter 'B'. The relevant part of the notification runs as follows:

'Whereas it appears to the Governor that the land is likely to be required to be taken by Government at the expense of the Ram Krishna Mission for the expansion of the Students Home known as Ram Krishna Mission Asram in ward No. V of the Calcutta Municipality of the city of Calcutta, it is hereby notified that for the above purpose a piece of land comprising premises No. 20, Jadulal Mullick Road, Calcutta..... is likely to be required within the aforesaid Ward No. V of the Calcutta Municipality in the city of Calcutta ..... in exercise of the powers conferred by the aforesaid section, Government is pleased to authorise the officers for the time being engaged in the undertaking, with their servants and workmen to enter upon and survey the land and do all other acts required or permitted by this section.....'

3. A copy of this notification was served on the petitioner on the 20/29th February, 1953, calling upon him to file an objection in writing within 30 days. On or about the 12th March, 1953 the petitioner filed his objection. On the 11th April, 1953 a declaration bearing No. 7280 L. A. dated the 10th April, 1953 was published in the Calcutta Gazette (Extra-ordinary) under the provisions of Section 6 of the Land Acquisition Act. The relevant provisions thereof are as follows :

'Whereas it appears to the Governor that land is required to be taken by Government at the expense of Ram Krishna Mission, for the expansion of the Students Home known as Ram Krishna Mission Asram in Ward No. V of Calcutta Municipality in the city of Calcutta, it is hereby declared that for the above purpose a piece of land comprising premises No. 20, Jadulal Mullick Road..... is required withinthe aforesaid Ward No. V of the Calcutta Municipality in the city of Calcutta.....'

4. On the 17th April, 1953 Notice in Form 9 of the Land Acquisition Act was issued as also a Notice in Form 10. Thereafter, an award was made upon notice to the petitioner, the sum payable under the Award being Rs. 2,42,121-5-1. It was further intimated that possession of the property will be taken on the 16th May, 1953. In fact, possession was actually delivered to the Mission on the 18th June, 1953. On the 22nd July, 1953 an application was made by the petitioner for the issue of a rule under Article 226 of the Constitution. When this application was first moved before me, the only point that was urged is what is contained in paragraph 17 of the petition, viz., that the acquisition of the premises in question for the purposes of a Students' Home is not a public purpose within the meaning of the Land Acquisition Act. I rejected the application summarily. There was an appeal from my order and before the Appeal Court it was contended that three points had been urged before me as follows :

(1) That there being no reference to a public purpose either in the Notification under Section 4 or in the declaration under Section 6 and it appearing nowhere that Government had ever applied their mind to the question of the existence of a public purpose and come to be of the view that such purpose existed, the whole proceeding was initially and fundamentally void.

(2) Assuming that a consideration of a public purpose could be discerned in both the notification and the declaration, proceeding was still bad, inasmuch as there had been no proper exercise by Government of their powers under the Land Acquisition Act and such exercise of those powers as had been made in the case was not bona fide.

(3) In any event, the order of acquisition could not be upheld inasmuch as the appellant had not been given a reasonable opportunity for pressing his objection and had in fact not been heard and that by reason of the failure to provide him such opportunity, a violation of his fundamental rights had occurred.

5. The learned Chief Justice was of the opinion that these points required consideration and he remanded the case for the issue of a rule nisi. Thereupon, the rule nisi was issued by me on the 20th January, 1955 upon the respondents to show cause why an order in the nature of mandamus should not be made directing the respondents to vacate the possession and restore the possession to the applicant of the premises No. 20, Jadulal Mullick Road, Calcutta and for other reliefs.

6. The way that the case was formulated before me at the hearing is not the same as it was propounded before the Court of Appeal. The way it was propounded by Mr. Meyer and Mr. Deb is as follows : My attention is drawn to Section 4 of the Act. Sub-section (1) of Section 4 states that whenever it appears to the State Government that land in any locality was needed for, or likely to be needed for, any public purpose, a notification to that effect shall be published in the Official Gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Sub-section (2) provides that upon such notification being published, it shall be lawful for any officer either generally or specially authorised by such Government in this behalf, and for the servants and workmen to do a variety of acts, e, g., to enter upon the land to make a survey and to do all other acts necessary to ascertain whether the land was adapted for such a purpose. In Section 4 there is no mention of land being acquired for the purposes of a company. Section 5-A, however, lays down that any person interested in any land which has been notified under Section 4, Sub-section (1) as being needed or likely to be needed for a public purpose or for a com-pany may, within 30 days after the issue of the notification, object to the acquisition of the land or of any land in the locality as the case may be. The acquisition of land for a company is provided for in Part VII of the Act. Section 38 provides that the local Government may authorise any officer of any company desiring to acquire land for its purposes to exercise the powers conferred by Section 4, and in every such case Section 4 shall be construed as if for the words 'for such purpose' the words 'for the purposes of the company' were substituted; and Section 5 shall be construed as if after the words 'the officer', the words 'of the company' were inserted. Section 39 provides that the provisions of Section 6 to Section 37 of the Act shall not be put in force in order to acquire land for any company, unless with the previous consent of the State Government, nor unless the company shall have executed the agreement hereinafter mentioned. We then come to Section 40, the relevant provisions whereof are very important and are set out below:

'Section 40(1). Such consent shall not begiven unless the local Government be satisfied (either on the report of the Collector under Section 5-A, Sub-section (2), or) by an enquiry held as hereinafter provided,

(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith, or

(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.'

7. Section 41 lays down the nature of the agreement which must be executed in such cases.

8. Mr. Meyer argues that Section 4 of the Act speaks of acquisition for a public purpose, but does not speak of the acquisition for a company. According to him, this means that all acquisitions for a company must be for a public purpose. The next point urged is that in the notification which has been published under Section 4 in this case, no public purpose has been mentioned. Indeed he points out that the printed form contains the following words :

'At the public expense for a public purpose, viz., for .....'

but we find, that the words 'public' and 'for a public purpose' have been struck out. It is stated in the notification that the land was likely to be required to be taken by Government at the expense of the Ram Krishna Mission for the expansion of the Students Home known as Ram Krishna Mission Asram in Ward No. V of the Calcutta Municipality. He argues that it is not a valid notification under Section 4. In this case, previous consent of the State Government has been obtained and an agreement drawn up as contemplated by Sections 39 and 41, Mr. Meyer next contends that no such consent could be given because the acquisition was not needed for the construction of any work likely to prove useful to the public. He argues that this house had already been constructed, and the Ram Krishna Mission was merely going to move in, so that the provisions of Section 40(1)(b) were not satisfied. The Mission is a Society registered under the Societies Registration Act, and it is conceded that under Section 3(e) of the Act, it is to be deemed to be a company. The only other point taken is the question of mala fides. It is said that the Mission has engineered the acquisition, having been unable to procure the premises by private treaty. Therefore, the three points taken before me may be summarised as follows :

(1) That the notice under Section 4 of the Land Acquisition Act is invalid as it discloses no public purpose.

(2) That even if the notice under Section 4 be deemed to be valid, because the object was to acquire property needed for the construction of some work likely to prove useful to the public, then the whole acquisition is invalid, because the acquistion was not needed for such a purpose.

(3) That the entire acquisition is invalid because of mala fides on the part of the Ram Krishna Mission, and the acquiring authority.

9. It will thus be seen that the approach is somewhat different from what was argued before the Court, of Appeal and that some of the points which the learned Chief Justice thought were arguable do not fall to be considered, not having been taken before me.

10. Before dealing with these points. I must refer to the agreement entered into between the Ram Krishna, Mission and the Governor of the State of West Bengal dated the10th April, 1953 duly published under Section 42 of the said Act on the same date, a copy of which i.s annexed to the petition dated the 25th November, 1954. The relevant part of the agreement runs as follows :

'Whereas for the purpose of the expansion of the Students Home known as Ram Krishna Mission Asram, the Society has applied to the Governor of West Bengal for the acquisition under the provisions of the Land Acquisition Act, 1894, of the piece or parcel of land.....comprising premises No. 20, Jadulal Mullick Road.....

And whereas, the said Governor of West Bengal being satisfied by an enquiry held under Section 40 of the said Act that the proposed acquisition is needed for the aforesaid purpose and that the said work is likely to prove useful to the public has consented to acquire on behalf of the said Society piece or parcel of land herein before described.'

11. In order to examine the contentions put forward by the petitioner it is necessary to examine the whole scheme of acquisition for companies under the Land Acquisition Act. This requires some historical introduction. The first legislation in India on the subject of the acquisition of lands for public purposes was Regulation 1 of 1824. The preamble to the Regulation stated that it was necessary occasionally to require the surrender of the property of individuals, for the purposes of general convenience to the community, and it was expedient distinctly to define the course of proceedings to be followed in such cases in order that works and arrangements of public utility may not be unduly impeded, and at the same time a just and full compensation might be secured to all persons holding an interest in the property so appropriated. This Regulation was only applicable to the provinces subject to the Presidency of Port William Thereafter, several special Acts were promulgated viz., Act XLII of 1350 for acquisition for railways, Act 1 of 1850, extending the provisions of Sections 1 to 7 to the town of Calcutta/Act XX of 1852, extending the provisions to Madras Presidency, and so forth. The first consolidated Act applicable to the whole of British India was Act VI of 1857. The object stated in the preamble to the said Act was-

'To make better provision for the acquisition of land needed for public purposes within the territories in the possession and under the Government of East India Company, and for the determination of the amount of compensation to be made for the same.'

The Act was slightly amended by Act II of 1861 providing for cases of temporary occupation in connection with the construction of any road, canal and railway etc. The Act of 1857, or the other preceding Acts, and Regulation I of 1824, did not contain any provision for acquisition of land for companies. In 1863, Act XXII of 1863 was passed which states in the preamble that it enabled the Government 'to take land for the construction of works of public utility by private person or companies'. 'Public utility' was defined by Section 2 as being work's of a nature mentioned therein, or such work as might ba declared by the Governor-General as a work of public utility. Both. Acts V and VI of 1857 and XXII of 1863, as well as the amending Act II of 1861 were repealed and replaced by Act X of 1870, the object of which was 'to consolidate and amend the law for the acquisition of land needed for public purposes and for companies.....' This has nowbeen replaced by Act I of 1894 which is now the operative Act. The Act has been entitled as 'Anact to amend the law for the acquisition of land for public purposes and for companies.' The preamble runs as follows :

''Whereas it is expedient to amend the law for the acquisition of land needed for public pur-poses and for companies and for determining the amount of compensation to be made on account of such acquisition.'

12. Part II of the Act deals with the several stages of the actual acquisition proceedings, Up to the taking of possession. It is divided into five sub-parts, viz., preliminary investigations, Sections 4 and 5, objections, Section 5-A, declaration by Government of the intended acquisition, Sections 6 to 10 --enquiry into measurements, value and claims and award by the Collector, Sections 11 to 15, and lastly, the taking of possession contained in Sections 16 and 17. I have already referred to the provisions of Section 4. The notification under Section 4 is the starting point of the acquisition. In other words, an acquisition cannot be effected without such a notice being issued as the starting point. If the object of the Act is to acquire land for public purposes, and for companies without the existence of a public purpose, then it is inexplicable why there is no reference to companies in Section 4, According to Section 4, the existence of a public purpose is an essential pre-requisite to the issuing of a notification under it. While Section 4 has no reference to acquisition for the purposes of a company, Section 5-A dealing with objections refers to it specifically. In fact, it speaks about land which has been notified under Section 4 Sub-section 1 as being 'needed or likely to be needed for a public purpose or for a company .....' This certainly appears to me to be a defect in the Statute, which perhaps was unintended, and was caused by the subsequent insertion of Section 5-A by Act XXXVIII of 1923. Let us see, however, whether the provisions, such as they are, can be reconciled. The acquisition for companies is more specifically dealt with under part VII of the Act, which is headed 'Acquisition of land for companies.' The first step to be taken by a company desiring to acquire land under the Land Acquisition Act, is to apply to the Collector giving particulars of the land it needs and the work which it proposes to do, and showing how it will be useful to the public under Section 38-A, the meaning of 'company' has been expanded in the case of housing of labour. Upon the application being made, the Collector enquires and makes a report and it goes to the State Government for consent. The consent of the State Government can only be given. (Section 40) If the purpose is for erection of dwelling houses for workmen or for the provision of amenities directly connected therewith or it such acquisition was needed for the construction of some work which was likely to prove useful to the public. In other words, the State Government cannot sanction the acquisition of any land for the purposes of a company, unless such purpose fell within the categories mentioned hereinbefore. Where a construction is likely to prove useful to the public, there is obviously a public purpose. It is not so clear in the case of the erection of dwelling houses for workmen, or provision of amenities for them. Supposing, it is a small company employing not more than a hundred workmen, can it be said that the purpose for erecting dwelling houses for them is a public purpose? Strictly speaking, public purpose should be a purpose in which the public and every member thereof or a substantial part thereof is or are interested. Coming, however to the temper of modern times and to our professedly socialistic attitude towards life in general, and the Constitution of our Government, which is directed towards making our country a welfare state run for the benefit of the common man, I think, it can be said that any provision of housing for labour and/or for amenities connected therewith, is to be deemed as a public purpose. It is but obvious that unless we give such a construction, grave consequences follow. Under Part VII of the Act, acquisition for the purposes of providing dwelling houses for workmen employed by a company or for the provision of amenities directly connected therewith is permitted. If it is not a public purpose, then compliance with Section 4 is impossible, and yet, no acquisition can be effected without a notification under Section 4. There would thus be a conflict between the two provisions of the Act. The right way of interpreting the Act which will resolve the conflict is to hold that an acquisition for a company can only be made for a public purpose and the providing of housing for labour and amenities connected therewith constitutes a public purpose. So far as the present case is concerned, the agreement shows that the sanction was granted under the provisions of Section 40(1)(b). In other words, that the acquisition is made for the construction of some work likely to prove useful to the public. That the extension of the Students Home by the Mission was likely to be useful to the public cannot be denied, and objection is not made on that score. Mr. Meyer argues that an extension of a Students Home does not amount to construction. In other words, there is nothing to show that anything was going to be constructed. He says that what is being acquired is a readymade building. In this connection it is pertinent to observe that it is most unfortunate that the petition does not contain any express allegation that there has been no construction. It is true that in paragraph 23 of the petition a general objection has been taken that the acquisition was ultra vires for non-compliance with the provisions of Sections 39 to 42 of the Act, but no particulars have been given. Mr. Meyer has argued that this was a case of a compulsory acquisition of land, and it was for the acquiring authority to comply strictly with the provisions of the law, and to show on the face Of the record that there was a construction which was for the purposes of public benefit. It is true that in cases of public acquisitions the acquiring authority must strictly comply with the law, but I find that Mr. Meyer is giving too narrow an interpretation to the provision of Section 40 of the Act. The notification states that the land was likely to be required for the extension of the Students Home known as Ram Krishna Mission Asram. We find that the Mission has an office already in the contiguous premises No. 18. If there is to be an extension, and if premises No. 20 is to be transformed into a Students Home, from a residential house, it must necessarily involve alterations and adjustments, and this, in my opinion, satisfies the provision of Section 40(1)(b). Apropos the argument, that the words 'public' and 'for a public purpose' have been struck out from the notice under Section 4, I have been able to discover the origin thereof. Underneath the notice, there are certain explanatory notes, and note 2 says that when land was required to be taken by Government at the expense of the company for a work of public utility. the words 'at the expense of the (name of the company)' should be substituted for the words 'at the public expense' and instead of the words 'a public purpose' the work should be concisely described. This is a misleading note, and is the direct reason why the words 'public purpose' were struck out. It is not that these words were struck out because there was no public purpose, but the note required that instead of the public purpose being stated in an indefinite way, it should be concisely described. There was obviously no reason whatsoever for striking out these words, and the misleading note should be deleted from the printed form. Coming back, however, to Section 40, we find that the acquisition should be needed for the construction of some work. The word 'work' has not been denned. Therefore, it might relate to any work. I do not see why the extension of the Students Home is not a 'work', or cannot be called a 'work' within the meaning of Section 40(1)(b). If the extension of a Students Home be 'work', then the construction of it need not necessarily be restricted to the raising of any structure. Construction of such a work would mean the carrying out of the work, namely, the extension of the Students' Home. In my opinion, on the facts and circumstances of this case, the provisions of Section 40(1)(b) have been satisfied. In view of this, the notice under Section 4 can also be justified. Government has been satisfied that the extension of the Students Home is for public benefit, and in the notice this purpose has been stated. Consequently, the public purpose has been stated. In these days, when there is grave dearth of accommodation for students in Calcutta, I think, it would be futile to suggest that the provision of such accommodation can be deemed to be anything except for the benefit of the public. I refused to come to that conclusion when the application was first moved before me, and I have not changed my mind since. In view of the points raised and discussed before me, I do not think it is of any use dealing with the points as developed before the Court of Appeal, but I need only point out that it was not argued before me, or at least the argument was not pressed, that the notification under Section 4 could be issued by an officer of the company concerned. Even if it was pressed before me I would reject the contention. Section 4 obviously speaks about a notification to be issued by Government, and such a notification cannot be issued by an officer of the company. It must be conceded that the wordings of Section 4 leaves much to be desired, and the legislature should give its attention to this subject and obviate difficulties by introducing the words 'or a company' after the words 'any public purpose' in Section 4. The explanation in Section 38 merely shows that Government may authorise any officer of a company to exercise the powers conferred by Section 4 but I do not think it extends to the issuing of the notification under Section 4. It refers to the provisions of Sub-section 2 of Section 4 and the functions therein stated. The provisions of Sub-section 2 of . Section 38 also does not help very much, and does not indicate that a notice under Section 4 can be given for the purposes of a company which is not a public purpose.

13. Lastly, we come to the question of mala-fides. Although this point has not been abandoned, it was not developed to any extent before me. It is argued that the Mission took a devious way for the purposes of acquiring the premises. Firstly, it made an offer to buy it by private treaty and later on finding that a private treaty was not possible, it took recourse to acquisition proceedings. It is alleged that although the Mission had offered a sum of Rs. 2,50,500/-, it was now getting it for much less, and even less than what the petitioner has purchased the premises for, at a public auction. It is also pointed out that the solicitor for the Mission was present at the time of the public auction. In my opinion, these facts do not amount to mala fides. Firstly, the fact that the Mission wanted to acquire the land by private contract, and later on took recourse to acquisition proceedings, cannot be evidence of mala fides, because it is precisely in these circumstances that acquisition proceedings do take place. If private individuals do not part with properties required for public purposes, then and then only is it necessary to resort to compulsion. As regards the price, I do not see that the Mission had anything to do with it. In fact, I must mention that this application was adjourned several times for the purposes of adjustment, and I understand that the Mission had offered to pay a sum of Rs. 2,50,000/- but the petitioner chooses to stand on his legal rights. The result is that no ground has been made out for the interference of this Court and that the application should be dismissed and the rule discharged. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //