The decision to contribute out of public funds for the expenses of acquisition need not be taken before publication of the notification under Section 4 of the Land Acquisition Act, 1894.

( 1 ) THIS appeal is directed against a judgment and order of D. Basu, J, dated September 11, 1964, whereby a Rule Nisi obtained by the appellant in an application under Article 226 of the Constitution was discharged.

( 2 ) THE appellant runs a Soorki Mill, Saw Mill etc. at Municipal holding No. 16, Chatubabu's Ghat Lane, measuring more or less 212 1/4 acre, in the District of Howrah. A notice under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the Act) was published in the Calcutta Gazette on November 3, 1960 in which it was stated that the said land was likely to be needed for a public purpose, namely, extension of Salkia Anglo Sanskrit School and Ushangini Balika Vidyalaya. It was also stated in this notice that the land was to be acquired partly at public expenses and partly at the expenses of the authorities of Salkia Anglo Sanskrit School. By a notice dated February 28, 1961, the appellant was informed that the date of the enquiry under Section 5a (2) of the Act was fixed on March 6, 1961 and the appellant was asked to be present on the spot in support of his objections which were filed on February 12, 1961. On July 9, 1962, the appellant filed another objection in which he asked for cancellation of the said plot of land from the proceedings for acquisition thereof on the ground that the land was not required for a public purpose. A declaration dated April 6, 1962, under Section 6 of the Act was published in the Calcutta Gazette on April 26, 1962. In this declaration also it was stated that the land was needed for the public purpose hereinbefore mentioned and the acquisition was to be made partly at the public expenses and partly at the expenses of the authorities of the said school. As the appellant did not obtain any redress of his grievances on the basis of the objections filed by him, he moved an application under Article 226 of the Constitution and obtained a Rule Nisi which was discharged by the judgment and order hereinbefore mentioned. This appeal is directed against this judgment and order whereby the Rule Nisi was discharged.

( 3 ) VARIOUS points were canvassed before the trial court in support of the petition. But the only contention raised and argued before us by Mr. Arun Kumar Dutt, learned Advocate for the appellant, was that the notification under Section 4 of the Act must be struck down, as it was a fraud on the Statute. It was argued that in this notification it was stated that the expenses of acquisition were to be paid partly out of public funds and partly by the Authorities of the said School. The notification under Section 4 of the Act was dated October 26, 1960. But by referring to a letter dated April 17, 1961, from the Assistant Secretary to the Government of West Bengal, to the Collector, Howrah, Mr. Dutt argued that up to the date of that letter, namely, April 17, 1961, no decision had been taken by the respondent No. 1 to contribute out of public funds, any part of the expenses of the acquisition. It was argued that in the said letter it was for the first time suggested that the Education Department of the respondent No. 1 would have to make a token grant towards the cost of the acquisition in order to legalise the land acquisition proceedings. It was, therefore plain that at no time prior to April 17, 1961, any decision was taken by the respondent No. 1 to pay any part of the expenses out of public funds. That being so, it was argued that the statement in the notification under Section 4 of the Act that part of the expenses was to be paid out of public funds was entirely false and such a false statement was a fraud on the Statute. 3a. It appears from a letter dated February 19, 1962, from S. C. Chakraborty, Deputy Secretary to the Government of West Bengal, to the Commissioner of the Burdwan Division that a decision was taken to contribute a sum of Rs. 10 only out of public funds. It is to be noted that this decision was taken before publication of