Rai Bahadur Ganga Bishnu Swaika &
Ors Vs. Calcutta Pinjrapole Society & Ors  INSC 246 (30 October 1967)
30/10/1967 SHELAT, J.M.
CITATION: 1968 AIR 615 1968 SCR (2) 117
Land Acquisition Act (1 of 1894), s.
6--Satisfaction of the Government as to the purpose of and need for
acquisition-If should appear in the declaration.
Under s. 6 of the Land Acquisition Act, 1894,
the State Government issued a declaration with respect to the land of the 1st
respondent after considering the report under s. 5A of the Act. The declaration
used the words 'as it appears to the Governor that the land is required to be
taken for a.public purpose' instead of the words 'the Governor is satisfied
that the land is needed for a public purpose'. A suit filed by the 1st
respondent against the State Government and others challenging the declaration
was decreed in second appeal by the High Court. on the ground that: (1) the
satisfaction of the Government as to the purpose of and the need for acquiring
the suit land must appear in the declaration itself; and (2) as the declaration
used the words 'it appears to the Governor etc.,' instead of the words 'the
Governor is satisfied etc.' it did not show such satisfaction and therefore
was. not in proper form and could not form the legal basis for the acquisition.
In appeal to this Court,
HELD: There being no statutory form and s. 6
not requiring the declaration to be made in any particular form.
the mere fact that the declaration does not
ex facie show the Government's satisfaction. assuming that the words 'it
appears' used in the declaration do not mean satisfaction.
would not make the declaration invalid or not
in conformity with s. 6. [123 E] Satisfaction of the Government after
consideration of the report, any. made under s. 5A is undoubtedly a condition
precedent to a valid declaration. But there is nothing in s. 6(1) which
requires that the satisfaction should be stated in the declaration, the only
declaration required by the sub-section being, that the land to be acquired is
needed for a public purpose or for a company. [122G-H] Observations in Ezra' v.
Secretary of State, I.L.R. 30 Cal.
36, at p. 81. approved Further, it is
immaterial whether or not such satisfaction is stated in the declaration. For.
even if it was so stated a person interested in the land can always challenge.
as a matter of fact, that the Government was not actually satisfied, and in
such a case, the Government would' have to satisfy the court by leading
evidence that it was so satisfied. In the present case, the fact that the
Government was satisfied was never challenged, the only contention raised
being. that as the declaration dissatisfied was never not state such
satisfaction it did not establish such satisfaction. Therefore, it was not
necessary for the Government to lead any evidence prove its satisfaction.
[Whether the words 'it appears to the
Governor that the land is required to be taken for a public purpose' and the
words 'the Governor is satisfied that the land is needed for a public purpose'
are synonymous,. not decided. [122F- G] 118.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 136 of 1965.
Appeal from the judgment and decree dated March 4, 1960 of the Calcutta High Court in Appeal from Appellate Decree No. 1021 of 1957.
S.V. Gupte, and D.N. Mukherjee, for the
B.K. Bhattacharya, M.K. Ghose and P.K. Ghose,
for respondent No. 1.
P.C. Chatterjee, G.S. Chatterlee and P.K.
Bose, for respondent No. 2.
The Judgment of the Court was delivered by
Shelat, J. One Arunshashi Dasi, Charu Chandra Sur and Jotish Chandra Sur were
the owners of the suit land admeasuring 1.15 acres situate in Rishra Municipality, West Bengal. On' November 15, 1920 they leased the land to Srikrishna
Goshala. On September 10, 1924, the said Goshala sold its leasehold interest in
the said land to the 1st respondent Society. On September 5, 1935 the Society sold the said leasehold interest to one Sovaram Sarma. In 1941, the said
Jostish Sur filed a Rent Suit against Sovaram and obtained an ex parte decree
against him. On September 9, 1941 the said Jotish in execution of the said
decree and at an auction sale held thereunder purchased Sovaram's interest and
took possession of the land. Thereafter, Sovaram's widow and son flied a suit
against the said Jotish alleging that as Sovaram had died during the pendency
of the said suit the decree passed against him was a nullity and so also the
auction sale. On June 27, 1945 the said suit was decreed against the said
Jotish and appeals by him against the said decree both in the District Court
and the High Court were dismissed. While the said suit was pending, Swaika, the
first appellant herein, purchased from the said Jotish his interest in the said
land for Rs. 6'000/ and also agreed to carry on the said litigation against
Sovaram's widow and son. Swaika thereafter tried to obtain possession of the
land but was foiled in doing so by an injunction obtained by Sovaram's widow'
and son, the plaintiffs in the said suit. Swaika then got the Education
Department to move for the acquisition of the said land for a Girls' High
School of which, it appears, he was the prime spirit. On July 1, 1946 the State Government 'issued the notification under see. 4 of the Land Acquisition Act
in respect of the suit land. An 'inquiry under s. 5A was held and thereafter on
April 18, 1951 the Government issued the notification under sec. 6 and passed
the necessary order under sec. 7.
On December 22, 1951 the 1st respondent Society purchased the leasehold interest in the said land from Sovaram's widow and
119 son after their suit was finally disposed of but after the said
notification under sec. 6 was issued. The 1st respondent Society then filed the
present suit against the State of West Bengal, the said Swaika and other
members of the managing committee of the said school for a declaration that the
said notifications and the proceedings taken there under were mala fide and
null and void and for an injunction against the Government taking possession of
the said land.
The Trial Court framed five issues but so far
as this appeal is concerned the relevant issue is Issue No. 3, viz.
"Is the plaintiff entitled to a decree
for a declaration that the declaration under section 6 and order under section
7 and, proceedings under the L.A. Act in Preliminary Land Acquisition Case No.
2 of 1945-46 of Howrah Collect orate were mala fide and in fraud of the
Government's powers under the said Act and null and void and not binding on the
plaintiffs ?" On this is issue, the Trial Court found that the 1st
respondent Society failed to establish the allegations as to mala fides and
abuse of power under the said Act and consequently dismissed the suit. In the
appeal by the 1st respondent Society before the, Additional District Judge the
only points urged for determination were (1) whether the said acquisition
proceedings were mala fide and in fraud of the Act and therefore null and void
and (2 ) whether the Society was entitled to. an injunction against the
Government taking possession of the said land.
It appears from the pleadings as also. the
issues framed by the Trial Court that the question as to whether the State
Government was satisfied or not as to the purpose and the need for acquiring
the said land was not specifically raised. Therefore, an attempt was made to.
raise the contention at the time of the heating of the appeal that the
declaration under sec. 6 did not prove such satisfaction.
The District Judge, however, dismissed the
application for amendment of the plaint by the 1st respondent Society.
The contention was sought to be raised
because the notification used the words "as it appears to the Governor
that the land is required to be taken for a public purpose" instead of the
words, viz., "the Governor is satisfied that the land is needed for a
public purpose." The argument was that the said words used in the
notification did not ex facie indicate the satisfaction of the government which
is a condition precedent to such a declaration and that therefore sec. 6 notification
was no.t in proper form and the acquisition proceedings taken thereafter were
bad in law.
It appears that though the amendment was
disallowed, the said contention was allowed to be urged, for, the District
Judge has answered it in the following terms :-- 120 declaration under sec. 6
the point that requires for consideration is whether the executive authority
did actually form an opinion about the requirement of the land for public
purpose. So far as the present declaration (Ex. 10A) is concerned it will go to
show that the land was required for public purpose and it is conclusive in view
of the provisions of section 6 of the Land Acquisition Act" On this
reasoning he dismissed the appeal. The District Judge also agreed with the
findings of the Trial Court that the 1st respondent Society failed to prove
mala fides on the part of the Government or the misuse of its power under the
The 1st respondent Society filed a Second
Appeal which was heard by a Division Bench of the High Court. Before the High Court,
Counsel for the respondent Society raised two contentions: as to mala fides and
abuse of power and (ii) that the notifications under secs. 4 and 6 were not in
accordance with law and were therefore invalid. The High Court took up the
second contention first and held as regards sec. 4 notification that it was
valid and could not be assailed.
As regards sec. 6 notification however the
High Court was impressed with the contention that after the amendment of sec. 6
by Act 38 of 1923, which substituted the words "when the' Local Government
is satisfied' for the words "whenever it appears to the Local
Government", satisfaction that the land is needed for a public purpose or
for a Company is a condition precedent for the declaration under sec. 6 and
that therefore the Government should make a declaration "to that
effect", i.e., of its satisfaction in the notification itself. The High
Court accepted this contention and held that such satisfaction must appear in
the declaration. The High Court also held that as the notification used the
words "whereas it appears to the Governor that the land is required"
instead of the words, viz, "whereas the Governor is satisfied that the
land is required" the declaration did not show such ,satisfaction and
therefore it was not in proper form and could not be said "to afford
sufficient statutory or legal basis for proceeding in acquisition." As
regards the contention as to mala fides and fraud on the statute the High Court
held that there was no evidence on the record from which it could be inferred
that there was collusion between the said Swaika and the Education Department
or the officers of the Land Acquisition Department and that therefore it could
not be held that the proceedings were in fraud of the statute or mala fide. The
High Court also observed that "prima facie, there is no reason to differ
from the findings made by the courts below." 121 The question as to mala
fides of the Government or the Government having misused 'its powers or having
acted in fraud of the statute was entirely a question of fact. There being a
concurrent finding on that question by the Trial Court and the District Court
against the 1st respondent Society, the High Court could not have reopened
their concurrent finding except on the ground that it was perverse or
unreasonable or without evidence. Such an argument not having been urged, the
High Court could not go into that question. But it was urged that the High
Court has merely expressed a prima facie view and has not conclusively accepted
the finding of the Trial Court and the District Court. That argument has no
merit. What the High Court really meant by the expression "prima
facie" was that the finding being concurrent was binding on it and that no
contention as to that finding being perverse etc., having been urged before it
there was not even a prima facie case to justify the reopening of that finding.
Therefore, the allegation as to mala fides or abuse of power by the Government
was conclusively negatived and Counsel for the 1st respondent Society was
therefore not entitled to canvass that question before us in this appeal.
The only question therefore that we are
called upon to decide is whether the High Court was correct in holding that (i)
the Government's satisfaction must be stated in the notification itself and
(ii) that because the notification has used the words "it appears to the
Governor" etc., and not the words that the Governor was satisfied, sec. 6
notification was not valid.
To appreciate the construction placed by the
High Court it is necessary to consider the effect of the change of words made
by sec. 4 of Act 38 of 1923 in sec. 6(1). As sub-section 1 stood prior to 1923
the words were "subject to the provisions of Part VII of the Act, when it
appears to the Local Government that any particular :land is needed for a
public purpose or for a Company, a declaration shall be made" etc. The
amendment of 1923 dropped these words and substituted the words "when the
Local Government is satisfied after considering the report, if any, made under
section 5A of sub-section 2" etc. It seems that the amendment was
considered necessary because the same Amendment Act inserted s. 5A for the
first time in the Act which gave a right to persons interested in the land to
be acquired to file objections and of being heard thereon by the Collector. The
new section enjoined upon the Collector to consider such objections and make a
report to the Government, whose decision on such objections was made final. One
reason why the word "satisfaction" was substituted for the word
"appears"' seems to be that since it was the Government who after
considering the objections and the report of the Collector thereon was to
arrive at its decision and then make 'the declaration required LI sup. CI/68--
9 122 by sub-section 2, the appropriate words would be "when the Local
Government is satisfied" rather than the words "when it appears to
the Local Government". The other reason which presumably led to the change
'in the language was to bring the words in sub-see. 1 of see. 6 in line with
the words used in see. 40 where the Government before granting its consent to
the acquisition for a Company has to "be satisfied" on an inquiry
held as provided thereinafter.
Since the Amendment Act 38 of 1923 provided
an inquiry into the objections of persons interested in the land under s. 5A,
section 40 also was amended by adding therein the words "either on the
report of the Collector under s. 5A or". Sec.
41 which requires the acquiring Company to
enter into an agreement with the Government also required satisfaction of the
Government after considering the report on the inquiry held under sec. 40. The
Amendment Act 38 of 1923 now added in s. 41 the report of the Collector under
s. 5A, if any.
These amendments show that even prior to the
1923 Amendment Act, whenever the Government was required by the Act to consider
a report, the legislature had used the word satisfaction on the part of the
Government. Since the Amendment Act 1923 introduced s. 5A requiring the
Collector to hold an inquiry and to make a report and required the Government
to consider that report and the objections dealt with in it, the legislature
presumably thought it appropriate to use the same expression which it had used
in sees. 40 and 41 were also an inquiry was provided for and the Government had
to consider the report of the officer making such inquiry before giving its
But Counsel for the 1st respondent Society
argued that since the legislature has used different language from the one it
had used earlier, it must mean that it did so deliberately and because it
considered the new words as more appropriate. On the other hand, Counsel for
the appellant argued that the meaning of both the expressions is synonymous. It
is not necessary for us in this appeal to construe the two expressions as on a
construction of the section we have come to the conclusion that it is not
necessary that satisfaction of the Government must ex facie appear in
declaration made under the section.
Sub-section 1 provides that when the
Government is satisfied that a particular land is needed for a public purpose
or for a Company, a declaration shall be made "to that effect".
Satisfaction of the Government after consideration of the report, if any, made
under sec. 5A is undoubtedly a condition precedent to a valid declaration, for,
there can be no valid acquisition under the Act unless the Government is
satisfied that the land to be acquired is needed for a public purpose or for a
Company. But there is nothing in sub-sec. 1 which requires that such
satisfaction need be stated in the declaration. The only declaration 123 as
required by sub-sec. 1 is that the land to be acquired is needed for a public
purpose or for a Company. Sub-section 2 makes this clear, for it clearly
provides that the declaration "shall state" where such land is
situate, "the purpose for which it is needed", its approximate area
and the place. where its plan, if made, can be inspected. It is such a
declaration made under sub sec. 1 and published under sub-see. 2 which becomes
conclusive evidence that the particular land is needed for a public purpose or
for a Company as the case may be. The contention therefore that it is
imperative that the satisfaction must be expressed in the declaration or that
otherwise the notification would not be in accord with sec. 6 is not correct.
The construction which we have put on sec. 6
is supported by the decision in Ezra v. The Secretary of State (1) where it was
held that a notification under sec. 6 need not be in any particular form. The
case went up to the Privy Council but it appears from the report of that case
that these observations were not challenged or disputed before the Privy
Council.(2) We are also told by Counsel that no statutory forms are prescribed
by the West Bengal Government for such a declaration either under the Act or
the rules made there under though there are model forms framed presumably for
the guidance. only of the officers of the Acquisition Department. There being
thus no statutory forms and see. 6 not requiring the declaration to be made in
any particular form, the mere fact that. the notification does not ex facie
show the Government's satisfaction, assuming that the words "it
appears" used in the notification do not mean satisfaction, would. not
render the notification invalid or not in conformity with sec. 6.
Apart from the clear language of sec. 6 it
would seem that it is immaterial whether such satisfaction is stated or not in
the notification. For, even if it is so. stated. a person interested in the land
can always challenge as a matter of fact that the Government was not actually
satisfied. In such a case the Government would have to satisfy the Court by
leading evidence that it was satisfied as required by sec. 6. In the present
case no. such evidence was led because the fact that the Government was
satisfied was never challenged in the pleadings and no issue on that question
was sought to be raised. Even when the 1 st respondent Society sought to amend
its plaint it did so only to say that the notification did not state such
satisfaction and therefore did not establish such satisfaction. The High Court
no doubt thought that this question was covered by Issue No.. 3 framed by the
Trial Court. But the contention said to be covered by that issue was not that
there was no satisfaction on the part of the Government that the land was
needed for a public purpose, viz., for he said Girls' School, but that (1) I.
L.R. 30 Cal. 36, 81.
(2) 32 I. A. 93.
124 the notification in the absence of words
to that effect did not prove that satisfaction. That being the position and no
issue having been raised on the factum of satisfaction, the State Government
was never called upon to lead evidence to prove its satisfaction. The fact that
sec. 5A inquiry was held and objections were filed and heard, the fact that the
Additional Collector had recommended the acquisition and had sent his report to
that effect and the Government thereafter issued sec. 6 notification would, in
the absence of any evidence to the contrary, show that the condition precedent
as to satisfaction was fulfilled. We are therefore of the view that the High
Court was in error when it held that sec.
6 notification was not in accord with that
section and that proceedings taken thereafter were vitiated.
We may mention that Counsel for the 1st
respondent Society cited certain authorities and also attempted to canvass the
issue as to mala fides on the part of the Government. As to the authorities
cited by him we think that they were neither relevant nor of any assistance to
him. As regards the question of mala fides, we do not think there is any
justification for reopening the concurrent finding of the Trial Court and the
Additional District Judge.
In the result, the appeal is allowed, the
High Court's judgment and decree are set aside and the judgment and decree
passed by the Trial Court and confirmed by the Addl.
District Judge dismissing the suit of the 1st
respondent Society are restored. The 1st respondent Society will pay to the
appellant the costs in this Court as also in the High Court.
V.P.S. Appeal allowed.