1. This appeal involves what ultimately boiled down to a short point.
2. It appears that on 19-2-1945, the then Government of Bengal, acting on behalf of the Government of India, requisitioned the road system lying on premises No. 22, Dover Lane. They also requisitioned by notifications issued on the same date the building sites comprised within the same premises, which had previously been sold out to as many as fifty-three persons. The previous history of the plot of land is that it belonged to a concern, called the Regent Estates Limited.
In 1940, Messrs Talbot and Company, acting on behalf of the Regent Estates Limited, submitted plans to the Corporation of Calcutta in respect of this plot wherein the land was shown as divided into several plots and a sewer and road system was also shown. The Corporation appears to have told the representatives of the owners that they would sanction the plans if a small strip of land lying on the northern extrimity was also acquired. That strip of land was a drain belonging to the Corporation.
The owners accepted that suggestion and on 18-5-1944, they purchased the strip of land concerned. On 28-6-1944, possession of that strip of land was given to the Regent Estates Limited for the purpose of constructing a gully pit through which the water of adjoining premises might be let out. Thereafter, the owners constructed roads and drains, effected electrical installations, divided the area into a number of plots and sold them to various purchasers.
3. It was at the aforesaid stage that the requisition orders were made. There is some obscurity as to whether there was a single requisition on 19-2-1945, by which, not only the roads lying over premises 22 Dover Lane, but also the land comprised within the premises were requisitioned. Paragraph 9 of the petition by which the present proceeding was initiated would suggest that only one requisition was made. That however is misleading.
It appears sufficiently from the facts stated by the learned Judge and accepted by him that before the requisition was made, the building sites had already been sold out to different purchasers, with the result that the Regent Estates Limited had been left with the ownership of only the road system. What the requisition authority did was to issue separate requisition notices to the different purchasers in respect of the plots purchased by them, because of those plots they were the owners --and a separate notice to the Regent Estates Limited in respect of the road system which still remained their property.
I am mentioning this fact, because the main argument advanced on behalf of the petitioner-appellant was constructed on the circumstance that there was a separate notice limited to the road-system only.
4. In the meantime, the Corporation had been approached for taking over the road system, but the order of requisition had intervened and by that order the Regent Estates Limited had been prohibited from disposing of the roads without the permission of the Land Acquisition Collector. The Land Acquisition Collector was therefore approached for permission to make over the roads to the Corporation and he granted such permission on 18-5-1945, subject to the condition that the requisition by Government would not in any manner be prejudicially affected.
The Corporation took over possession of the road system on 25-9-1945, and by a notification, duly published, declared the roads to be public roads.
5. Government, after requisitioning the lands and the road system in the manner I have just recited, proceeded to build staff quarters upon the premises for the use and occupation of Government personnel. Between 1945 and 1951, there appears to have been a considerable amount of constructive activity resulting in the erection of a fairly large number of buildings. It is said that during that period or a part of it, public use of the roads was not objected to or interfered with.
6. On 21-3-1951, a combined notice of acquisition was issued in respect of the entirety of premises N. 22 Dover Lane, comprising both the lands and the network of roads lying upon it. It is alleged that after issuing the notice of acquisition, the Government erected a barbed wire fencing along the borders of the premises, thereby barring out the public from the use of the roads. There is nothing in the affidavits to show that the drainage system underlying the premises was interfered with in any manner.
7. It appears that in 1947 a representation was made to the Land Acquisition Collector by certain neighbouring owners who prayed that in Government acquired the plot of land which they had requisitioned, the public use of the road system might not be interfered with. When after the acquisition the area was fenced off, apprehensions were caused that the drainage system also might be interfered with. The present petitioner, who is the owner of the two neighbouring premises, namely, 16/2 Garcha Second Lane and 7(L) Panditia Road, then moved this Court under Article 226 of the Constitution of India for the appropriate writs to be issued on the respondent-Government, directing them to forbear from giving effect to their notice of acquisition and prohibiting them from causing any obstruction to or interference with the free and unrestricted use of the roads and drains.
8. The principal ground upon which the application was pressed was that inasmuch as there had been a separate notice in respect of the road system, 'requisitioned land' for the purposes of Sub-section (3) of Section 5 of the Requisitioned Land (Continuance of Powers) Act, 1947, had to be taken to be the road system only and not also the building sites comprised in the premises. If that was so. Government could not lawfully acquire the road system, unless they could establish that 'works' had been 'constructed' over the roads during the period of requisition.
No such fact, it was argued, could possibly be established, inasmuch as roads were not 'works' as contemplated by Section 5(3) of the Requisitioned Land (Continuance of Powers) Act, 1947, and inasmuch as Government had spent nothing at all on the roads.
9. Government, in their affidavit-in-opposition, controverted the allegation that nothing had been expended by them on the road system and gave a list of several items in two annexures, one of which related to development of the roads concerned and the other to installation of electric lines and fittings in various forms and ways. They claimed to have spent about Rs. 500/- on items set out in the first annexure and a further sum on the items set out in the second of the annexures.
10. In that state of the affidavits, the learned Judge proceeded on the footing that there had, in fact, been a separate notice of requisition in respect of the road system, as alleged by the petitioner. He accepted the affidavit filed on behalf of Government by which some expenditure on the roads and the electric installations had been claimed and found it necessary to animadvert on the positiveness with which the petitioner had stated that, to his knowledge, not even a farthing had been spent by Government either on the road system or for street lighting.
Having thus found the facts, the learned Judge proceeded to consider the question of law raised by the petitioners as also the legal objection to the maintenance of the petition taken by the respondent-Government.
11. As regards the ground of law on which the acquisition was impugned by the petitioner, the leaned Judge held that items of work of the kind described in annexures to the affidavit filed by Government were 'works' within the meaning of Sub-section (3) of Section 5 of the Act. The ground taken by the petitioner was, therefore, overruled. The learned Judge dismissed the application on a second ground as well which was that there had been no demand and refusal of justice and there were no circumstances of urgency which could justify the omission.
He thus held that the petitioner was hot entitled to maintain the application at all and that on the merits to, he had failed to substantiate the ground on which he sought to attack the acquisition. The question of the right of the user as respects the drains under the roads however was left open.
12. It is against the above decision of Bose, J., that the present appeal was preferred.
13. The learned Advocate for the appellant confined himself rightly, if I may say so, to the ground which had been taken on behalf of his client before the learned Judge and which had failed. He contended that all that Government had proved was that they had carried out certain minor repairs in respect of the road system. According to the learned Advocate, such repairs could not possibly be 'works' within the meaning of Section 5(3) of the Act and the carrying out of such repairs could not be 'construction', as contemplated by the same provision.
14. It may be that if the matter fell to be decided by reference to the dictionary meaning of the two words, a fuller examination of it might be necessary. But unfortunately for the petitioners-appellant, the statute provides its own dictionary and states what the expression 'works' means. Inferentially it also gives the meaning of the word 'construction'. Sub-section (5) of Section 5 says that for the purposes of Clause (a) of Sub-section (3) 'works' includes 'buildings, structures and improvements of every description'.
It will thus appear that 'improvements' are also 'works' in the contemplation of the Act. It is not essential that they should be original constructions. The learned Advocate for the appellant then contended that although the expression 'works' might bear the limited meaning of 'improvements' in the language of the Act, the items of work claimed to have been done by Government could not be called even improvements. It appears to me that on the state of the materials on record, it is not possible to accept the contention of the learned Advocate.
Taking development of the roads first, which is the subject-matter of Annexure 'A' to the affidavit filed by Government, the items of work claimed to have been done include new treatment of the road surface, supplying, spreading, dressing and consolidating stone metal and providing protective coats of liquid asphalt. Another item indicates that the road surface was dug up and a great deal of work had to be done by way of preparing sub-grade for the new treatment. In view of these operations which were carried out on the road surface and the condition to which the road surface was obviously brought by such treatment, it is impossible to say that the treatment did not amount to improvement unless the petitioner proved that even prior to the operations carried out by Government, the records had been of the same quality and made up in the same way and that what had occurred to them was only some natural deterioration caused by user and efflux of time. There is no material whatever on the record to show what the previous state or composition of the road was.
Even if the composition of the road-surface had been the same, I am unable to hold that operations which amounted to a virtual replacement of the whole road-surface by a new surface made up of new materials did not amount to improvement.
15. But assuming that the operations amounted to improvements and therefore constituted 'works' as contemplated by the Act, did they yet amount to 'construction'? In my view, the answer must be in the affirmative. Had it not been for the definition contained in Sub-section (5) of Section 5 which I read a moment ago, it might be contended with some plausibility that construction of roads could only mean laying out of roads, that is to say, construction for the first time. Such a contention, however, is excluded by Section 5(5).
As I have pointed out already, according to that provision, 'works' includes improvements. If it does, then carrying out improvements must be construction of works, as will be seen, if for the word 'works' occurring in Section 5(3) (a), the word 'improvements' is substituted. If 'works' include improvements, construction of 'works' must include construction of improvements which can only mean carrying improvements out. It would thus seem that what was done in the present case to the road system amounted to construction of works within the meaning of the Act.
The ground of law urged on behalf of the petitioner-appellant must, therefore, fail.
16. There remains the objection raised by the respondent-Government. The learned Advocate for the petitioner-appellant contended that on the facts of the present case, his client's petition could not fail on the ground that he had not demanded justice and been refused the same. It was pointed out that, according to the affidavits, after the fencing had been erected along the borders of the premises and the public excluded from the use of the roads, some of them had removed a portion of the fencing and thereupon the fencing was restored. It was contended that when the members of the public removed a portion of the fencing, they asserted their right of way or gave notice of such right and when Government restored the fencing, they refused to recognize the right sought to be asserted.
In those circumstances, so it was argued, there had in effect been a demand for justice and a refusal of it and consequently, it could not be said that there was some initial and technical defect which debarred the petitioner-appellant from maintaining the petition at all.
17. The learned Advocate for the petitioner-appellant invoked, in aid of his last contention, the decision of a Division Bench of this Court in the case -- 'Rabindra Nath v. State of West Bengal' : AIR1954Cal394 (A). Assuming that the principle contended for is a sound one, I have still some doubt as to whether the petitioner-appellant could utilise what is alleged to have been done by and to certain members of the public. It is not stated that he himself had removed any part of the fencing and that having made an attempt to pass along the road, he was prevented.
The petition which he filed is framed as a petition solely on his own behalf as the owner o the two premises which I mentioned sometime ago and it is not a petition, as it could not be, on behalf of the members of the public, I do not consider it necessary to pursue the point further, because even assuming that the petitioner-appellant was entitled to maintain the application, he must fail on the merits for the reasons which I have already given.
18. It remains to refer to one other matter. It was contended by the learned Advocate for the petitioner-appellant that we should at least issue some mandatory or prohibitory direction with regard to the underground drains. The learned Judge, it will be recalled, has left that question open. I do not see how we can deal with the matter otherwise, inasmuch as there is no averment anywhere that any attempt has yet been made to interfere with the passage of water along the drains, as before.
If any obstruction occurs in future, the petitioner-appellant must then try to enforce his rights, if he has any, in respect of the drains. As regards the roads, the appellant's case was based entirely on the alleged invalidity of the acquisition and it was not contended that, in any event, the acquisition must be subject to the public right of user.
19. For the reasons I have already given, this appeal must fail and is dismissed with costs-the hearing-fee being assessed at three gold mohurs.
20. I agree.