# Merctr Henderaon's Trmtees v. Dunferul-ine District

- **Citation:** [1963] Supp. 2 S.C.R. 812
- **Court:** Supreme Court of India
- **Decided:** 1962-01-05
- **Case number:** Civil Appeals Nos. 683 to 686of1962
- **Bench:** JAFEH hLur, J. L. KArun, K. SunnARAo andJ. R. l\:fUDIIOLKAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/merctr-henderaon-s-trmtees-v-dunferul-ine-district-2846
- **Pages:** 16

## Headnote

Land Acquisition-Acquisition/or Trust--Notijication under
ss. 4 and 6 after Bihar Act came into force-Validity-If repeal<'l
by Bihar Toum Planningaml Improvement Tru3t Act, 1951 (3-5·of
1951)-!Vords "has been previously. made"-Oonstructian of
-ss. 33, 46, 71-LanJ. Acqui.•ition Act, 1891 (1of1891), .ss, 4,
6, 50.
.
.
- . -
•
A common question of law arose in these appeals namely,
whether the Bihar Town Planning and Improvement Trust
Act, 1951 (Act 35 1951), replaced the Land Acquisition Act
(I of 1894) in the matter of acquisition of land for the said
Trust and whether the notifications issued by the Government
of Bihar under ss. 4 and 6 of the Land Acquisition Act were
valid, after the Bihar Act had come into force. The High
Court held the notifications of the State Government ultra vires
and illegal. On the principle . of generalia specialibus nan
derogant and also that if a statute directs a thing to be done in
a certain way that thi_ng shall not, even if there be no negative
words be done in any other way.·
.
.
Held, (per Imain, Kapur and Mudholkar, lJ.), that s.71
of the Dihar Act which modified the Land Acquisition Act itself
contemplates the machinery of the Land Acquisition· Act as
modified even for the purpose of acquiring land for the Trust.
It does not exclude the Land Acquisition Act; on the contrary
it makes it applicable but subject to its modifications and
exceptions. The first relevant modification is by sub-cl. (I) of
clause (2) of the schedule. There the first notice under s. 46 · of
the Bihar Act is substituted for and has the same clfcct as a notification under s. 4 (I) of the Land Acquisition Act but that is
subject to an important exc:eption . and that exception is a
notification under s. 4 (I) of the Land Acquisition Act or a -
declaration under s. 6 of th.it Act which "has been previously ·
made and is in force". The words "has been previously
made" did not merely connote the issuing of a notification
before the Bihar Act was passed, but include ·all notifications
made prior or anterior to the first publication of a notice of an
improvement sche'!'e ui:de_r ~· 4_5 of the ~ih.:;r '}c~:
2 s.c.R.
SUPREME COURT REPORTS
813
Merctr Henderaon's Trmtees v.
Dunferul-ine District
Committee, 37 Sc. L. R. 119, referred to.
Held, further, that the power of the State Government
to acquire land for the Trust was not taken away by the Bihar
,\ct was further shown by s. 33 of tint Act which deals with
the preparation of a Master Plan by the Trust, which has to
designate the land subject to compulsory acquisition by the
various authorities mentioned therein including the State
Goverrunent.
Jlelrl, also, that s. 50 (1) of the Land Acquisition Act
would be equally available for being put into force for the purpose of a rl'rust, which shows that the intention of the lcgisl<l·
ture was not to exclude the functions of the Land Acquisition
Act such as ss. 4, 6, 50 etc. in the matter of acquisition of land
for the purpose of a trust.
Per, Subba Rao; J.
Under the Act, the Trust was
authorised to implement the improvement schen1es in a parti·
cular way and for the purposes of implementing them to acquire
land in a prescribed manner. If that be so, the Trust was
bound to implement the scheme in the manner prescribed and
could not resort to any other method. The broad scheme of
the Act also supports the conclusion that the Trust could only
implement the scheme involving acquisition of land in the
manner provideu by the Act, that is to say in accordance with
the land acquisition provisions
incorporated in the Act by
reference and therefore the two principles noticed by the High
Court were apposite.
Secr<tary of State v. llindmtan Co-operative Insurance
Society Ltd. A. I. R. 1931 P. G. 149 and Ex-P.arte Stephens,
(1876) 3 Ch. D. 659, relied on.
The saving of notification issued under s. 4 or s. 6 of the
Land Acquisition Act in para. 2 (I) of the schedule of the Act
applies to such notifications issued before or after passing of
the A

## Text

Dttm~tr 7.
812 SUPRE1\1E COURT REPORTS (1963] SUPP.
PATNA IMPROVEMENT TRUST
v.
I
Sl\fT. LAKSHl\H DEVI & OTHERS
(JAFEH hLur,J. L. KArun, K. SunnARAo andJ. R.
l\:fUDIIOLKAH, JJ.)
Land Acquisition-Acquisition/or Trust--Notijication under
ss. 4 and 6 after Bihar Act came into force-Validity-If repeal<'l
by Bihar Toum Planningaml Improvement Tru3t Act, 1951 (3-5·of
1951)-!Vords "has been previously. made"-Oonstructian of
-ss. 33, 46, 71-LanJ. Acqui.•ition Act, 1891 (1of1891), .ss, 4,
6, 50.
.
.
- . -
•
A common question of law arose in these appeals namely,
whether the Bihar Town Planning and Improvement Trust
Act, 1951 (Act 35 1951), replaced the Land Acquisition Act
(I of 1894) in the matter of acquisition of land for the said
Trust and whether the notifications issued by the Government
of Bihar under ss. 4 and 6 of the Land Acquisition Act were
valid, after the Bihar Act had come into force. The High
Court held the notifications of the State Government ultra vires
and illegal. On the principle . of generalia specialibus nan
derogant and also that if a statute directs a thing to be done in
a certain way that thi_ng shall not, even if there be no negative
words be done in any other way.·
.
.
Held, (per Imain, Kapur and Mudholkar, lJ.), that s.71
of the Dihar Act which modified the Land Acquisition Act itself
contemplates the machinery of the Land Acquisition· Act as
modified even for the purpose of acquiring land for the Trust.
It does not exclude the Land Acquisition Act; on the contrary
it makes it applicable but subject to its modifications and
exceptions. The first relevant modification is by sub-cl. (I) of
clause (2) of the schedule. There the first notice under s. 46 · of
the Bihar Act is substituted for and has the same clfcct as a notification under s. 4 (I) of the Land Acquisition Act but that is
subject to an important exc:eption . and that exception is a
notification under s. 4 (I) of the Land Acquisition Act or a -
declaration under s. 6 of th.it Act which "has been previously ·
made and is in force". The words "has been previously
made" did not merely connote the issuing of a notification
before the Bihar Act was passed, but include ·all notifications
made prior or anterior to the first publication of a notice of an
improvement sche'!'e ui:de_r ~· 4_5 of the ~ih.:;r '}c~:
2 s.c.R.
SUPREME COURT REPORTS
813
Merctr Henderaon's Trmtees v.
Dunferul-ine District
Committee, 37 Sc. L. R. 119, referred to.
Held, further, that the power of the State Government
to acquire land for the Trust was not taken away by the Bihar
,\ct was further shown by s. 33 of tint Act which deals with
the preparation of a Master Plan by the Trust, which has to
designate the land subject to compulsory acquisition by the
various authorities mentioned therein including the State
Goverrunent.
Jlelrl, also, that s. 50 (1) of the Land Acquisition Act
would be equally available for being put into force for the purpose of a rl'rust, which shows that the intention of the lcgisl<l·
ture was not to exclude the functions of the Land Acquisition
Act such as ss. 4, 6, 50 etc. in the matter of acquisition of land
for the purpose of a trust.
Per, Subba Rao; J.
Under the Act, the Trust was
authorised to implement the improvement schen1es in a parti·
cular way and for the purposes of implementing them to acquire
land in a prescribed manner. If that be so, the Trust was
bound to implement the scheme in the manner prescribed and
could not resort to any other method. The broad scheme of
the Act also supports the conclusion that the Trust could only
implement the scheme involving acquisition of land in the
manner provideu by the Act, that is to say in accordance with
the land acquisition provisions
incorporated in the Act by
reference and therefore the two principles noticed by the High
Court were apposite.
Secr<tary of State v. llindmtan Co-operative Insurance
Society Ltd. A. I. R. 1931 P. G. 149 and Ex-P.arte Stephens,
(1876) 3 Ch. D. 659, relied on.
The saving of notification issued under s. 4 or s. 6 of the
Land Acquisition Act in para. 2 (I) of the schedule of the Act
applies to such notifications issued before or after passing of
the Act, but prior to the issue of the fast pubulktion or notice
of implementation of the scheme under s. 46 of the Act.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 683 to 686of1962.
.
Appeal by special leave from the judgment
and order dated January 5, 1962, of the Patna High
Court in Miscellaneous Judicial Cases Nos. 335, 433,
434 and 450 of 1961.
1962
P"tria lmproumtent
Trust
••
Smt. Lokslimi Dtvi
1962
PtJtna Improwment
Trust
, ..
Sml. Lakshmi Devi
Kapur, J,
SU SUPREME COURT REPORTS [1963] SUPP.
Jf1Jhabir Prasad, Advocate-General for Bihar,
M. K. Rwnarnurthi, D. P. Singh, S. 0. Agarwala
and R. K. Garg, for the appellant.
lJas·udeo Prasad, Sushil Kumar Jlza, YoyesW11r
Prasad and U. P. Singh, for respondent No. 1.
I9!i2.
December 7.
The
Judgment
of
Imam, Kapur and l'viudholkar, JJ. was delivered by
Kapur, .J.
Subba Ras, J., delivered a separate
Judgment.
K.uuu, J.-In these appeals by special leave
against the judgment and order of the High Court
of Patna a common question of Jaw arose as to the
interpretation of the provisions relating to acquisition
under the Bihar Town Planning & Improvement
Trust Act 1951, Act 35 of 1951, hereinafter called
the "llihar Act" and whether the notifications issued
by the State Government under s. 4 of the Land
Acquisition Act were valid.
The appellant in all
the appeals is the Patna Improvement Trust but in
all the four appeals the respondents are different
persons.
On January 19, 19!il, the Government of Bihar
issued a notification under s. 4 of the Land Acquisition Act of 1894 proposing to
acquire an area of
407 .85 acres of land in the city of Patna at the
expense of the Patna Improvement Trust for a public
purpose viz., for development of residential neighbourhood, to provide for housing facilities for various
income groups and to facilitate the planned growth
·of the city of Patna. By another similar notification
of the same date the State of Bihar proposed to
acquire
0'!.08 acres of land.
The respondents
challenged the legality of the notices under s. 4 of the
Land Acquisition Act by their respecti l'e applications
for writs under Art. 226 of the Constitution.
These
notifications were quashed by a writ in the nature
-
2 S.C.R.
SUPREME COURT REPORTS
815
of certiomri by the High Court of Patna and against
that judgment and order the Patna Improvement
Trust has brought these appeals by special leave.
In order to determine the legality of the notifications in dispute it is necessary to examine the
various provisions of the Bihar Act.
Chapter II of
that Act provides for the constitution of Improvement Trust and other matters connected therewith
and s. 3 therein vests in the Improvement Trust the
duty of carrying out the provisions of the Bihar Act in
any local area. Chapter III deals with improvement
schemes. Section 46 in that chapter provides for the
preparation, publication and transmission of notices as
to improvement schemes. Under that section when an
improvement scheme has been framed the trust is
required to prepare a notice stating the framing of
the scheme, the boundaries of the areas comprised in
the scheme and certain other particulars in regard to
land which it is proposed to acquire and that notice
has to be published in the manner therein provided.
Under s. 48, within 30 days following the publication
of the notice under s. 46 the Trust has to serve a
notice on various persons mentioned therein including
persons whose land is proposed to be acquired. Such
notice shall require any person to whom a notice is
issued if he objects to the acquisition to state his
reasons within sixty days. Bys. 71 of the Bihar Act
for the purpose of acquiring land for the Trust under
the Land Acquisition Act certain provisions of the
· Land Acquisition Act have been modified, That
section reads :
s. 71.
"Modification of the Land Acq·uisition
Act 1894.
For the purpose of acquiring land for the
Trust
under
the
Land
Acquisition
Act, 18!l4 (1 ofl8!l4)-
(a) the said Act shall be subject to the modifications specified in the Schedule,"
1961
Patna Improuem1nl
Tnui
v.
Smi. L.kslmri Devi
Kapur, J
1962
l"oln4 l..prot111n,. t
Tnut
'"
Sml. LW/uni Dt1 i
A~"jur1 J.
816 SUPREME COURT REPORTS [1963) SUPP.
The Schedule referred to in s. 71 (a) sets out the
modifications made in the Land Acquisition Act and
we shall only refer to those which are relevant for
the purposes of this case.
Clause 2 (I) provides :
C. 2 (l) "The first publication of a notice of an
improvement scheme under section 46 of
the Bihar Town Planning and Improvement Trust Act, 1951 (Bihar Act XXXV
of 1951) shall be substituted for and have
the same effect as publication in the
official Gazette and in the locality of a
notification
under
su b·section ( 1)
of
section 4 of the said Act, except where a
notification under sub-section ( l)
of
section 4 or a declaration under section 6
of the said Act has been previously made
and is in force".
(2) "Proceedings under section 48 and subsection (1) of section 50 of the Bibar Town
Planning
and
Improvement
Trust
Act, 1951, (Bihar Act XXXV of 1951)
shall be substituted for and have the same
effect rui proceedings under section 5-A of
the said Act."
(3)
"Subject to the provisions of paragraphs
6 and 7 of this Schedule, the issue of a
notice under clause (c) of sub-section (3) of
section 39 of the Bihar Town Planning
and Improvement Trust Act, 1951 (Bihar
Act XXXV of 1951) in the case of land
proposed to be acquired in pursuance of
that clause, and in any other case the
publication of a notification under section
52 of that Act shall be substituted for and
have the same effect as a declaration under
section 6 of the said Act, except where a
declaration under the
last
mentioned
2 S.C.R. SUPREME COURT REPORTS
817
section has been previously made and is in
force."
Clause 2 (2) provides that proceedings
under
s. 48 and s. 50 (l) of the Bihar Act shall be substituted for and have the same effect as proceedings
under s. 5A of that Act. Clause 2 (3) makes a·notice
under cl. (C) of sub-s. (3) of s. 39 of the Bihar Act a
substitute for s. 6 of the Land Acquisition Act in the
case or lands proposed to be acquired under that
section and in any other case publication of a notice
under s. 52 to be such a substitute. By other clauses
in the Schedule certain additional sections are deemed
to have been added to the Land Acquisition Act.
The argument on behalf of the respondents in
the High Court was, as it is in this Court, that if land
is sought to be acquired for the purpose of the Patna
Improvement Trust then it can be acquired in accordance with the provisions of the Bihar Act and not
under th(' provisions of the Land Acquisition Act
because the former Act completely replaces the Land
Acquisition Act in regard to the acquisition of land
for the purpose of the Improvement Trust. It was
also argued before us that the purpose of the Bihar
Act was to provide a complete code for acquisition
of land for the purpose of the Trust and. that the
Bihar Act and the Land Acquisition Act were incon·
sistent Acts and could not operate in the same fiel:I.
The High Court decided the petition on the pri11ciple,
generalia specir•libus 11on derogant and because both
the Bihar Act and the Land Acquisition Act were
concerned with acquisition of land, the former being
a special Act relating to acquisitions for the purpose
of Improvement Trusts, it applied to the exclusion· of
the latter Act which was an Act dealing with acquisi·
·tion of lands in general. Therefore the State Govern·
ment had no authority to take steps for acquisition of
land for the purpose of the Improvement Trust under
~e general provisions of the Land ~uisition ¥.~
-
1962
PatlUl lmprovemnd
Trost
••
Sm1. L.lrsl!mi Deol
Kajiur~ J.
1962
1'111"• lmpro1J:mtnt
Tr1ul
v.
Sml. l.Whmi Deui
818 SUPREME COURT REPORTS [19e3]SUPP.
after the Bihar Act had come into force and the
Improvement Trust had been constituted, and consequently the notifications of the State Government
were ultra uirea and illegal. It also held that the
Improvement Trust was bound to follow the
procedure expressly laid down in the Bihar Act for
the object of carrying out its duties and it was not
open to it to adopt any other machinery for the
carrying out of those duties, the principle being that
if a statute directs a statutory authority to exercise
its power in a particular manner it must be exercised
only in that manner and none other. The High
Court also held that as under the Bihar Act the
Improvement Trust is entitled to carry out its duties
for which it has been constituted it cannot carry out
development or expansion without preparing a matter
plan under s. 33 of the Art or without following the
procedure under s. 42A of the Act, this last section
having been introduced into the Bihar Act by an
Amcndinr; Act of 1956.
It is not necessary to go into the argument of
inconsistency between the Bihar Act and the Land
Acquisition Act or the special Act excluding the
general because it appears to us that the various
provisions of the Bihar Act themselves afford the key
to the solution of the problem before us which is
one of construction. Section 71 of the Bihar Act which
modi lies the Land Acquisition . \ct, itself states that
for 1 he purpose of acquisition of land fur the Trust
under the Land
.~cquisition Act that Act (Land
Acqu'sition Act) shall be subject to the modifications
specified in the Schedule.
Therefore even for the
purpose of acqu;ring land for the Trust the machinery
of the Land Acquisition Act as modified is contemplated. It does not exclude the Land Acquisition Act,
on the contrary it makes it applicable but subject to
its modifications and exceptions. Now the first relevant modification is by sub-cl. (I) of clause 2 of the
Schedule. There a first notice under s. 46 of the Bihar
2 S.C.R.
SUPREME COURT REPORTS
819
Act is substituted for and has the same effect as a
notification under s. 4 ( l) of the Land Acquisition Act
but that is subject to an important exception and that
exception is a notification under s. 4( l) of the Land
Acquisition Act or a declaration under s. 6 of that
Act which "has been previously made and is in
force".
Thus when the exception applies the first
notice under s. 46 of the Bihar Act has not that
effect. The words "has been previously made" do
not merely connote the issuing of a notification before
the Bihar Act was passed but include all notifications
made prior or anterior to the first publication of a
notice of an improvement scheme under s. 46. In
other words if, before a notice under s. 46 has been
published a notification under s. 4( 1) or a declaration under s. G of the Land Acquisition Act is made
and is in force then the first publication of a notice
under s. 46 would not be substituted for or have the
same effect as a notification under s. 4(1).
This
construction is in accord with the construction placed
by the Scottish courts in Mercer Henderson's Trustee.i
v. Dunferuline District Committee (1) on similar
words viz "previously in use". Lord Justice-Clerk
construed those words as not being equivalent to
prior to the passing of a statute.
That the power of
the State Govemment to acquire land for the Trust
is not taken away by the Bihar Act is further shown
by s. 33 of that Act which deals with the preparation
of a master plan by the Trust.
Its relevant part is
as follows :-
s. 33(3)
"Subject to rules as may be prescribed for
regulating the form and contents of master
plan, a master plan shall include Sl!Ch
maps and such descriptive matters as may
be necessary to illustrate any proposal of
'chemes with such degree of details as may
be appropriate to different parts of the
area, and any such master plan may ii).
Ill S7 1c, L.R, 119,
1962
P •t11a .mprolJlmlt.t
Trust
v.
Sm~. Wshmi Devi
196Z
Palna !mprot·~ment
Trust
••
Smt. Lakshmi D1vi
Kaput, J.
820 SUPREME COURT REPORTS [1963] SUPP.
particular-
(a) ······················································
(b) designate as land subject to compulsory
acquisition by the State Government, the
Trust, the planning authority appointed
under section 138 or any public utility
agency any land allocated by the plan
for the purpose of any of their functions"
Thus the master plan has to designate the land
which will be subject to compulsory acquisition by
the various authorities therein mentioned including
the State Government.
Again by clause 1 of the Schedule of the
Bihar Act sub·s. (ee) iscdeemed to be inserted ins. 3
of the Land Acquisition Act and by that modification the expression "local authority" will include
the Board of Trustees for the improvement of a town
constituted under s. 8 of the Bihar Act which means
the Trust. Section 50(1) of the Land Acquisition
Act relates to the employment of the provisions of
the Land Acquisition Act:for the purpose of acquiring
land at the costs of any fund managed or controlled
by a local authority or any company.
Therefore
s. 50( I) would be equally available for being put
into force for the purpose of a trust. This again
shows that the intention of the legillature was not to
exclude the functions of the Land Acquisition Act
such as ss. 4, U, 50 etc. in the matter of acquisition of
land for the purpose of a Trust.
The notification issued by the State Government
'
is not therefore invalid and the High Court was in
error in holding it otherwise.
We therefore allow these appeals, set aside the
judgment and order of the High Court and remit the:
2 S.C.R.
SUPREME COURT REPORTS
821
case to the High Court to decide the question whether
the order of the State Government is hit by Art. 14a point which was argued before the High Court but
has not been decided. The costs will abide the
event. One hearing fee in this Court.
SunnA RAO, J.-1 have had the advantage of
reading the judgment prepared by my learned
brother, Kapur, J. I regret my inability to agree
with him. The facts are fully stated in his judgment
and I need not restate them.
The question that falls to be considered is
whether the Government of Bihar can issue a notification under ss. 4 and 6 of the Land Acquisition
Act to acquire land at the expense of the Patna Improvement Trust for development of residential neighbourhood, for providing for housing facilities for
various income groups and for
facilitating the
planned growth of the City of Patna, after the Bihar
Town Planning and Improvement Trust Act, 1951
(Act 35 of l!J51 ), herein after called the Act, came
into force.
To state it differently, the question is
whether the Act replaces the Land Acquisition Act
(1 of 1894-) in the matter of acquisition of land for
the said Trust.
The material provisions of the Act relevant to
this part of the enquiry may now be read. The
long title of the Act is "to provide for the improvement, development and expansion of towns in the
State of Bihar". The preamble to the Act reads :
"Whereas it is c)<pcdient to make provision
for the improvement, development and expansion of towns in the State of llihar so as to
secure to their present and future inhabitants
sanitary conditions,
amenity and convrnie11cc ........• ''.
l'ctM [mjT9vtmeTlt
Trust
v.
Smt. l•kslrmi Devi
Kapur, J.
Subi• R .. , J.
lllf2
Potno lmproV1mtnt
r,,,.r,
y,
Sml. Lakshmi Devi
S1tbb1 Rtto, J.
822 SUPREME COURT REPORTS [1963] SUPP.
Section 2 (16) : "Trust" means the Board of
Trustees constituted under section 3.
Section 3 : The duty of carrying out the provisions of this Act in any local area shall, subject
to the conditions and limitations hereinafter
contained, be vested in a Board to be called
"The (name of the town) Imi;i,rovcment Trust",
hereinafter called "the Trust': and every such
Trust shall be a body corporate and have
perpetual succession and a common seal, and
shall by the said name sue and be sued.
Section 69: The Trust may, with the previous
sanction of the State Government, acquire land
under the provisions of the Land Acquisition
Act, 1894 (1 of 1894) for carrying out any of
the purposes of this Act.
Section 71 : For the purpose of acquiring land
for the Trust under the Land Acquisition Act,
1894 (1 of 1894)-
(a) The said Act shall be subject to the
modifications specified in the Schedule.
The Schedule gives the modifications made in
the various sections of the Land Acquisition Act,
1894 (I of 1894). It is, therefore, manifest that the
Act was passed with a view to provide for the
improvement, development and expansion of towns
in the State of Bihar, that a statutory corporate body,
called the Improvement Trust, was created thereunder, that certain powers were entrusted to it for
the purpose of implementing the object of the Act,
and that the provisions of the Land Acquisition Act,
1894, as modified, were incorporated therein by
reference to enable the Trust to acquire lands necessary for implementing its schemes of improvement.
That Act is a special and also a self-contained one.
-
2 S.C.R.
SUPREME COURT REPORTS
823
It the Trust intends to acquire any land for its purpose, it can only do so in the manner provided by
the Act. Can it ignore the provisions of the Act
and approach the State Government to acquire lands
for the purposes of th.e Act under the Land Acquisition Act, 1894 ? That is the simple question that
arises in this case.
The law on the subject is very well settled and,
in my view, the learned Judges of the High Court
have correctly appreciated it and applied it to the
facts of the case. Two principles noticed by the
High Court are apposite.
The first principle is
generalia sp(J{)ialibus non derogant. This principle
is exemplified by the decision of the Privy Council
in Secretary of State v. Hindustan Co-operative
Inaurance Society . Ltd. ('). The second principle is
that if a statute directs a thiug be done m a
certain way that thing shall not, even if there
be no negative words, be done in any other way.
This principle is illustrated by the decision in
Ex parte Stephens (').
A combined effect of the said
two principles may be stated thus : a general Act
must yield to a special Act dealing with a specific
subject-matter and that if an Act directs a thing to
be done in a particular way, it shall be deemed to
have prohibited the doing of that thing in any other
way. Under the Act, the Trust is authorized to
implement the improvement schemes in a particular
way and for the purposes of implementing them to
acquire land in a prescribed manner. If that be so,
the Trust is bound to implement the scheme in the
manner prescribed and cannot resort to any other
method, that is to say it can acquire land for trust
purposes only by resorting to the provisions of the
Land Acquisition Act as modified and incorporated
by reference in the Act.
A perusal of the relevant provisions of the Act
also indicates an integrated design for drawing
(1) A.I.R, 1931 P.O. 149.
(2) (1876) S Ch. D, 659.
1961
P«lnQ Im;r(N)emtnl
Trust
v.
Sm!, Llksluni Devi
Su6bo R.o, J.
1962
PatM lmproVlmtnl
Tr us I
••
Smt. Lakshmi Devi
Sr1bba Rao, J.
824 SUPREME COURT REPORTS [1963] SUPP.
schemes of improvement and implementing them
by acquisition or otherwise. Under the Act many
statutory powers and duties ·are given to the Trust
for evolving different schemes and implementing
them. Section 33 empowers the Tmst to prepare
a master plan. Sections 3!, 35, 36, 3!!, 40, 41 and
42 authorize the Trust to make various schemes
within the framework of the master plan. Section
42A enables the Trust to make a scheme for improve·
ment in respect of an area not included in the master
plan. Sections 43 to
017 provide for issue of requisite notices to persons affected by the scheme and
for consideration of representations and objections
that may be made to the Trust. Section 48 provides for notice of the proposed acquisition of
land. Section 50 enjoins on the Trust to consider
objections or representations received and to hear
the parties if they so desire. On hearing objections
and representations, the Trust may either abandon
the scheme or apply to the State Government for
the sanction of the scheme with modifications, if any,
which the Trust may consider to be
necessary;
thereafter, the Government either gi vcs its sanction
or refuses to do so. It is, therefore, clear that under
the Act before a land is acquired by the Trust for
its purposes, it has got to go through a quasi ·judicial
procedure for finalizing the scheme. The parties
affected have every opportunity ·to object to the
scheme proposed generally or in so far as it affect·
ed their land and even thereafter to file objections
to the acquisition of their land.
This complicated
procedure conceived to reconcile individual rights
and social purposes cannot be short circuited by the
Trust ignoring the Act altogether and approaching
the State Government for acquiring land for its
purposes which it can only implement in the manner
provided by the Act.
The broad scheme of the Act
also, therefore, supports the coucluoion that the Tnuit
can only implement the scheme involving acquisition
of land in the manner provided by the Act.
...
-
2 s.c.R.
SUPREME COURT REPORTS
825
But strong reliance is placed on the provisions
of the Schedule, particularly on para. 2 thereof in
support
of the contention that the provisions
of the Land Acquisition Act are
open to the
Trust
for acquirin;; lands
for
its
purposes.
Paragraph 2 of the Schedule reads :
(1) The first publication of a notice of an
improvement scheme under section 46 of
the Bihar Town Planning and Improvement Trust Act 1951 (Bihar Act XXXVI
of 1!)51) shall be substituted for and have
the same effect as publication in the
Official Gazette and in the locality of a
notification under sub-section (1) of section
4 of the said Act, except where a notification under sub-section ( 1) of section 4 or
a declaration under section 6 of the said
Act has been previously made and 1s m
force.
(2) Proceedings under section 48 and sub·
section (I) of section 50 of the Bihar Town
Planning and Improvement Trust Act,
1951 (Bihar Act XXXV ofl951) shall be
substituted for and have the same effect as
proceedings under section 5-A of the said
Act.
(3) Subject to the provisions of paragraph 6
and 7 of the Schedule, the issue of a notice
under clause (c) of sub-section (3) of
section 39 of tl1e Bihar Town Planning
and Improvement Trust Act, 1951 (Bihar
Act XXXV of 1951) in the case of land
proposed to be acquired in pursuance of
that clause, and in any other case the
publication of a notification under section
52 of that Act shall be substituted for and
have the same effect as a declaration under
1962
PiJtn ·, lmprocunwt
Trust
v.
Smt. ukskmi D.c
s, bbo Rao, I.
1962
Pain• Improv1menl
Trwt
y,
.. ~mt. Lakshmi Devi
Snbba Rao, J.
826 SUPREME COURT REPORTS [1963] SUPP.
section 6 of the said Act, except where a
declaration under the last
mentioned
section has been previously made and is
in force.
The saving of notifications under ss. 4 and 6 in
para. 2 (l) of the Schedule, the argument proceeds,
discloses an intention of the Legislature to preserve
the Land Acquisition Act of 1894 without any
modification as an alternative for the Trust acquiring land to implement its scheme. This argument,
if accepted, is destructive of the entire scheme of the
Act. If the land Acquisition Act ofl894, without
modification was preserved, what was the necessity
for modifying the said Act and incorporating the
modified provisions by reference in the Act ? The
Legislature could as well have made a provision that
whenever the Trust wanted to acquire land to
implement its scheme it should apply to the Government for taking steps under the Land Acquisition
Act, 1894. An incongruity shall not be attributed
to the Legislature unless it is .unavoidable.
In this
case the exception in para. 2 ( l) of the Schedule
can easily be given a meaning without doing
violence to the intention of the Legislature.
Learned counsel for the appellant suggests that the notification under s. 4 or s. 6 of the Act refers to that made
by the Government under· the said sections before
the Act came into force.
But the words "previously
made" arc comprehensive enough to take in the
notification under s. 4 or s. 6 of the Act made after
the passing of the Act, but prior to the issue of the
first publication of notice of implementation of the
scheme under s. 46 of the Act. The exception will
cover such notifications issued before or after the
Act. Section :13 (3) of the Act contemplates such a
notification. Under that section a master plan
prepared by the Trust may designate a particular
land as subject to compulsory acquisition by the
State Government.
If a particular land
was
-
.....
2 S.C.R.
SUPREME COURT REPORtS
827
designated as land subject to compulsory acquisition
by the State Government, the State Government can
compulsorily acquire that land. The Government
might have issued a notification under s. 4 or s. 6 of
the Land Acquisition Act in respect of such land;
in such a case the exception is attracted and the
notice under s. 46 of the Act cannot be substituted
for it. It is not suggested that the notification in
question was issued by the Government in respect
of a land designated under the master plan, as land
subject to
compulsory acquisition by the State
Government. On this interpretation the exception
does not become otiose and it fits in squarely with
the scheme of the Act. So, the exception in cl. (3)
dealing with deferred street schemes under s. 39 of
the Act can be made to refer only to such notification
issued by the Government under s. 4 or 6 of the Land
Acquisition Act. I would, therefere, hold that whenever the Trust seeks to acquire land for the purpose of
the implementation of the scheme for which it was
constituted, it can only acquire land in the manner
prescribed by the Act, that is to say, in accordance
with the land acquisition provisions incorporated in
the Act by reference. As in the present case the
notifications issued by the Government under s. 4 of
the Land Acquisition Act, 18!14, for the acquisition
of the land in question for trust purposes do not
fall under the exception, the said notifications were
void. The High Court was right in quashing the
said notifications under Art. 226 of the Constitution .
The appeals fail and are dismissed with costs.
.
BY CounT : In accordance with the majority
view the appeals are allowed and the case remitted
to the High Court. The costs will abide the event.
One h{;aring fee in this court.
1962
Palna lmprowment
Tr"sl
v.
Smt, Wshmi Dtvi
~·ubbo Rao, J.