# [1968] 2 S.C.R. 117

- **Citation:** [1968] 2 S.C.R. 117
- **Court:** Supreme Court of India
- **Decided:** 1967-10-30
- **Bench:** S. M. Sucri, J. ¥· Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-2-s-c-r-117-4298
- **Pages:** 8

## Headnote

Land Acquisition Act (I of 1894), s. 6--Satisfaction of the Government as to the p'urpose of and need for acquisitian-If should appec.•r in
the declarc::on.
Under s. 6 of the Land Acquisition Act, 1894, the State Government
issued a declaration with respect to the land of the !st respondent after
considering the report· under s. SA of the Act.
The
declaration used
the words 'as it appears to the Goveraor 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 5uch satisfaction and therefore was· not in propef form ;.rti<l
could not form the legal basis for the acquisition.
In. appeal to this Com;t,
, HELD : There being no· statutory form and s. 6 not requirin,e; the
declaration to be made in any particular form, the -ritere fact that thcdec;Jaration 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 withs. 6.
[123 El
Satisfaction of the Government after consideration of the report, if
any, made under s. SA is undoubtedly a condition precedent to a valid
declaration.
But there is nothing in s. 6( I)
which- requires that th"
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.
[I 22G·H]
Observations in Ezr•· Y. Secretary of State,
I.L.R. 30 Cal. 36, at
p. SI. 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 G6vcmmcnt 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 did.
not state such satisfaction it did not establish such satisfaction. 'Illercforc, it was not necessary for the Government to lead any cvhJcncc to•
prove its satisfaction. [123F-HJ
[Whether the words 'it appears ·to the
Governor 'that the land is
requircJ to be taken for a public purpose' and the words 'the Governor
is satisfied that the land is needed for a puhfic purpose' arc synonymous ..
not decided.
[122F.Q]
I l 8
SL'PRDl1' COURT REPORTS
(1968] 2 S.C.R.
<~IVIL - APPELLATE JuRISDICTJuN : Civil Appeal No. 136 of
A
1965.
Appeal from the j udgmem and decree dated March 4, 1960
,if the Calcutta High Court in Appeal from Appellate Decree No.
1021O[1957.
S. V. Gupte, and D. _N. Mukherjee, for the appellants.
B
B. K. Bhallacharya, M. K. Gli-;,~ and P. K. Ghose
for
respondent No. I.
--
-'
I'. C. Chatteriee. G. S. Chatterje~ and P. K. Bo.1e, for respondent :No. 2.

## Text

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RAI BAHADUR GANGA BISHNU SWAIKA & ORS.
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CALCUITA PINJRAPOLE SOCIETY & ORS.
October 30, 1967
[S. M. SUCRI AND J. ¥· SHELAT, JJ.)
Land Acquisition Act (I of 1894), s. 6--Satisfaction of the Government as to the p'urpose of and need for acquisitian-If should appec.•r in
the declarc::on.
Under s. 6 of the Land Acquisition Act, 1894, the State Government
issued a declaration with respect to the land of the !st respondent after
considering the report· under s. SA of the Act.
The
declaration used
the words 'as it appears to the Goveraor 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 5uch satisfaction and therefore was· not in propef form ;.rti<l
could not form the legal basis for the acquisition.
In. appeal to this Com;t,
, HELD : There being no· statutory form and s. 6 not requirin,e; the
declaration to be made in any particular form, the -ritere fact that thcdec;Jaration 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 withs. 6.
[123 El
Satisfaction of the Government after consideration of the report, if
any, made under s. SA is undoubtedly a condition precedent to a valid
declaration.
But there is nothing in s. 6( I)
which- requires that th"
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.
[I 22G·H]
Observations in Ezr•· Y. Secretary of State,
I.L.R. 30 Cal. 36, at
p. SI. 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 G6vcmmcnt 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 did.
not state such satisfaction it did not establish such satisfaction. 'Illercforc, it was not necessary for the Government to lead any cvhJcncc to•
prove its satisfaction. [123F-HJ
[Whether the words 'it appears ·to the
Governor 'that the land is
requircJ to be taken for a public purpose' and the words 'the Governor
is satisfied that the land is needed for a puhfic purpose' arc synonymous ..
not decided.
[122F.Q]
I l 8
SL'PRDl1' COURT REPORTS
(1968] 2 S.C.R.
<~IVIL - APPELLATE JuRISDICTJuN : Civil Appeal No. 136 of
A
1965.
Appeal from the j udgmem and decree dated March 4, 1960
,if the Calcutta High Court in Appeal from Appellate Decree No.
1021O[1957.
S. V. Gupte, and D. _N. Mukherjee, for the appellants.
B
B. K. Bhallacharya, M. K. Gli-;,~ and P. K. Ghose
for
respondent No. I.
--
-'
I'. C. Chatteriee. G. S. Chatterje~ and P. K. Bo.1e, for respondent :No. 2.
The Judgment of the Court was delivered by
Sllelat, J.
One Arunshashi Dasi,
Charn Chandra Sur and
Jotish Chandra Sur were the owners of the sflit land admeasuring
1.15 acres situate in Rishra Municipality, West Bengal.
On
November 15, 1920 they leased the land to Srikrishna Goshala.
On September I 0, 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 Sanna.
In 1941, the said Jotish ~ur filed a Rent Suit
against Sovaram and obtained an ex parte decree against him. On
September 9, I 941 1he said Jotish in execution of the said dxrec
and at an auction sale held
thereunder
purchased
Sovaram ·s
interest and took posscss10n of the land.
Thereafter. Sovaram "s
widow and son filed a suit against the said Jotish aUcging (hat as
Sovaram had died during the pcndency of the said suit the decree
passed against him was a nullity and so also the auction sale.
On Ju~ 27, 1945 the said suit was decreed
against the said
Jotish ·and appeals by him abainst the said decree both in the
District Coun 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
Sovararn'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 ~r.rcars, he
was the prime spirit. On July 1, 1946 the
Stat~ Gt•vcr:unent
issued the notification ·under sec. 4 of the Land Acqui;itic>n Act
in respect of the suit land. An inquiry under s. 5A was held ::nd
thereafter on April 18, 1951 the Govenunent issued the notifi;:ation under scs. 6 and passed the necessary
0rd.:r under s,c. 7.
On December 22, 1951 the I st respondent Society purchasc<l the
leasehold interest in the said land from Sova:am·s
widow
and
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GANGA BISHNU v. PINJRAROLE SOCIETY (She/at, J.)
I 19
son after thei~ suit was finally disposed of but after the said noti- ·
fication under sec. 6 was issued.
The 1st respondent Suclety
then '\filed the pre~ent suit against the State of :-Vest Ben¥al, the
said Swaika and other members of the managmg committee of
the said schoot for a declaration that the said notifications and
the proceedings taken thereunder were ma/a fide and null and
V,oid and' for an injunction against the Government taking possession of the said land.
The Trial Court framed five issues but so far as thls appeal
is concerned the relevant issue is fssue No. 3, viz.,
"Is the plaintiff entitl.00 .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 Collectorate. 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 Issue, the Trial Court found that the
1st re>pondent
Society failed to establish the allegations as to
ma/a fides and
abuse_ Qf 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 detennination were (i) whether the said acquisition proceedings were male
fide and in fraud of the Act and therefore null and void and (2)
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whether the Society was entitled to an
injunction against the
Government taking possession of the said land.
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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
tho said land was not specifically raised. Therefore, an attempt·
was made to raise the contention at the time of the hearing 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 piaint by the 1st respondent Society.
The contention was sought to be raised because .the: notification
used tho 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
pu!'p06C."
The argument was that the _said wvrds 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 notificati<:>n was not in proper form and the
acquisitbn - 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 1udge has
answered it in \he following terms :-
120
SUPREME COURT REPORTS
[1968) 2 S.C.R.
.
..Whatever language may be used in the declara-
~on .under. sec. 6 the poi!J! that requires for considerauon 1s whether the execu!lve authority did actually fonn
an opinion about the r~;uirement of the land for public
purpose.
So far as the present declaration (Ex. JOA)
is concerned it will go 10 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 thfs reasoning he dismissed the 11ppeal.
The District Judge
also agreed with the findings of the Trial Court Iha!
the 1st
respondent Society failed to prove ma/a fides on the part of the
Government or the misuse of its power under the Act.
•
The I st respondent Society fi.lcd 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:
( i) as to ma/a fides and abuse of power and (ii) that the notification~ 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 ~s regard> sec. 4 notification that it was
valid and could not be assailed.
As regards sec. 6 no1ificalion however the High Court was
impressed with the contention that aft.er the amendment of sec. 6
by Act 38 of 1923, which substituted 1hc words "when the Local
G<JVernment is satisfied'". for the words "whenever it appears to
the Local Government", satisfaction that ~he land is needed for
a public purpose or for a Company is a condition precedent for
the decl'aration under sec. 6 and that therefore the Government
should make a declaration "to that effect", i.e., of it< satisfaction
in the 119tification itself.
Th~ 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
ls
required" instead of the words. viz., "whereas the Governor is
satisfied that the land is required" the dedaration did. not show
such satisfaction and therefor.~ it was not in proper form
and
could not bc said "lo afford sufficient statutory or legal basis for
proceeding in
acquisitio~."
As regards the contenuon
as
to
ma/a (idel· and fraud on the statute the High Court held that
there was no evidence on the record from which it could be in-
(errcd that there was coll us ion 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 ma/a fide. The High Court
also oh«rvcd that "prima facie, there is no reason ·o differ from
the finding' made by the court~ below."
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GANGA B!SHNU v. P!NJRAPOLE ,,SOCIETY (She/at, .T.)
121
The quesdon as to ma/a {ides 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 o_n that question by the Trial Court and the District Court against the 1st respondent Seciety, the High Court
could not have
reopened
their concurrent finding
except
on the ground that it was perverse or unreasonable or
wi'hout 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 m.~rely expressed a prima
facie
v:ew 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
"prim!'
facie" was that the finding being concurrent was· bindjng on 1t
and that no contention as to that finding being perverse , ytc.,
having been urged before it there was not even a prima facie ca5e
to justify the reopening of that finding. Therefore, the allegation
as !O ma/a fides or abuse of power by the Government was conclusively negatived and Counsel for the !st respondent Society
was therefore not entitled to canvass that question before us in
this appeal.
;Ille 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 wa5 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 Pllrticular land is needed for a public purpose or
. for a <:ompa:riy, a declara6on shall be m'ade" etc.
The amend-·
ment of · J 923 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 h1
the Act which gave a right to persons interested in the land to be
<lCCJUired to file objections and of being h~ard thereon by the
Collector.
The new section enjo:ned upon the Collector to consider such. objectiom 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 ,th\: objecti.:ins and the report of the Collector thereon was
to arrive at its decision and then make the declaration required
LI Sup. Cl/68-9
122
SUPREME COURT REPORTS
f 1%8) 2 S.CR.
A
by sub-sect° on 2, . the appropriate words would be "11.·hcn the
Local Gov.~rnmcn: is salisticd" ralher than lhc v.ords "when
it
appears lo the Local Government".
The other reason which
presumably led 10 lhe change in the language was to bring the
words in sub-sec. I of sec. 6 in line with 1he words used in sec. 40
~here lhc Government before granling ils consent to 1hc acquisi·
uon for a Company has to "be satisfied" on an inquirv held as
,.e
provided thcreinafter. Since the Amendment Act 38 of 1923 provided an inquiry into the objections of persons inlcrcsted in the
land under s. SA, section 40 also was amended by adding therein
the words "either on the report of the Collector under s. SA or-.
Sec. 41 which requires the acquir:ng Company to enlcr into an
agreement w11h lhe Govemmenl also required salisfaclion of 1hc
Government afler 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 Collec1or under s.
SA, if
any.
These
amendments show that even prior to the 1923 Amendment Acl.
whenever the Government was required by the A :t to consider
a report, lhc legislature had used the word satisfaction on the
part of the Government.
Since the Amendment A.ct 1923 intro·
duced s. SA rcquiring'the Collector to hold an inquiry and
to
make a JYI>Ort and required the Government 'to consider that
report· ariiJ the objections dealt with in it, the legislature presumably though1 it appropriate to use the same expression which it
had us.ed in secs. 40 and 41 where also an inquiry was provided
for and the Government had to consider tlie report of the officer
making such inquiry before giving its consent.
But Coun~el for the 1 SI respondent Society argued that since
the legislature has used different language from the one it had
used earlier, it must mean 1hat it did so deliberately and because
it considered the new words _as more appropriate.
On the other
band, Counsel for the appellant argued that the meaning of bo:h
the expressions is synonymous. It is not necessary for us in this
appeal to construe the two expressions as on a construction of
the s.!Ction we have come to the conclusion that it is 11ot n=-
sary that satisfaction of the Government must ex facie appear in
declaration made under the section.
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Sub-section I provides that when the Government is satisG
tied 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. SA is undoubtedly a condition orcc.~dent to
a valid declaration, for. there can be no valid acquisition under
the Act unless ihe Government is satisfied 1hat the land
to be
H
acquired is needed for a public purpose or for a Company. But
there is nothing in sub-sec. I which requires
that
such satisfaction need be stated in the declaration.
The only dcclara:ion
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GANGA BISHNU v. PINJRAPOLE SOCIETY (She/at, J.)
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, fur 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 u:ider subsec. 1 and published under
~ub-sec. 2 which becomes conclusive evidence that the particular land is needed for a public
purpose or for a Company ::s ihe case may be. The contention
therefore that it is imperative that the satisfaction must be expressed in the declaration or that oth.~rwise 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(') 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.(')
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 thereunder though there are model forms framed
presumably for the guidance only of the officers of the Acquisition
Department.
There beinj?; thus no s\atUtory forms and · sec. 6
not requiri\1g the declaration to be made in any particular form,
the mere fact that the notification does not ex }acie show the
Government's satisfaction, assuming that the words "it appears"
used in the notification do not mean satisfaction, would not render
the no'.ification 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 Gove1 nment was satisfied was never
challenged in the pleadings and no issue on that question was
sought to be raised. Even when the I st respondent Society sought
to amend its plaint it did so only to say that the ,1otification did
not state such satisfaction and therefore did not es'.ablish such
satisfaction. The High Court no doubt thought that this. question
was covered by Issue No. 3 framed by !he 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, vi;:,., for he said Girls' School, but that
(I) 1. L. R. 30 Cal. 36, 81.
(2) 32 !'. A. 93.
124
SUPREME COURT REPORTS
[I 968j'2 S.C.Rc
the noti~cation in the absen.ce of words to that effect did not prove
that sat!Sfaction.
That bemg the. posttion and no issue having
been raised on the factum of satisfaction, the State Gov.~rnment
was never called upon to lead evidence to prove its satisfaction.
The fact that sec. 5A inquiry was held and objections were filec'
and heard, the fact that the Additional Collector had recommend
ed the acquisition and had sent his rcpon to that effect and the
Government thereafter issued sec. 6 notifica!ion would, in the
absence of any evidence to the contrary, show that the condition
precedent as to satisfaction was fulfilled.
We arc therefore of
the vi~w that the High Court was in error when it held that sec.
6 notiljcation was 'not in accord with that section and that proceedings taken thereafter were vitiated.
We may mention that Counsel for the !st respondent Society
cited cenain authoritb and also attempted to canvass the issue
as to ma/a {ides 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 ma/a [ides, we
do not think there is any )ustification for reopening the concurrent
finding of the Trial Court and the Additional District Judge.
In the resul!, the appeal is allowed, the High Court's judgment
and decree arc set aside and the judgment and docree passed by
the Trial Court and confirmed by the Addi. District Judge dismissA
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ing the suit of the !st respondent Society are restored. The !st
respondent Society will pay to the appellant the costs in this Court
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as also in the High Court.
V.P.S.
A ppea! allowed.
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