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HIGH COURT OF CALCUTTA
H. K. Bose, B. C. Mitra
KRISHNALAL SADHU - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. O. 446 Of 1959
Decided On : JANUARY 27, 1965
LAND ACQUISITION ACT, 1894 - Sections 3(c), 4, 6, 45, 47 - WRIT PETITION - Maintainability - Abatement of appeal - Applicability of Order 22 of the Code of Civil Procedure, 1908 - Scope of Section 141 of the Code of Civil Procedure, 1908 - Whether applicable to writ proceedings - Whether Order 22 of the Code of Civil Procedure, 1908 is applicable to writ proceedings - Whether the entire appeal abates by reason of the death of one of the appellants whose heirs and legal representatives have not been brought on record within the time allowed by law - Whether the notices issued on the basis of Section 47 of the Land Acquisition Act, 1894 are illegal and without jurisdiction - Whether the institution Balika Bani Vidyalaya, Chinsurah was not a Company within the meaning of the Land Acquisition Act, 1894 and as such no notification under Section 4 or any declaration under Section 6 of the Act could be made for acquisition of land for a playground and hostel for the students and teachers of the said Institution.
Fact of the Case:
The appellants were the owners of certain plots of land which were acquired by the Government for a public purpose, namely, for a playground and hostel for students and teachers of Chinsurah Balika Bani Mandir H. E. School. The appellants challenged the acquisition on the ground that the notices issued on the basis of Section 47 of the Land Acquisition Act, 1894 were illegal and without jurisdiction, and that the institution Balika Bani Vidyalaya, Chinsurah was not a Company within the meaning of the Land Acquisition Act, 1894 and as such no notification under Section 4 or any declaration under Section 6 of the Act could be made for acquisition of land for a playground and hostel for the students and teachers of the said Institution. The High Court dismissed the writ petition filed by the appellants.
Finding of the Court:
The Court held that: (i) Order 22 of the Code of Civil Procedure, 1908 is applicable to writ proceedings. (ii) The entire appeal abates by reason of the death of one of the appellants whose heirs and legal representatives have not been brought on record within the time allowed by law. (iii) The notices issued on the basis of Section 47 of the Land Acquisition Act, 1894 are not illegal and without jurisdiction. (iv) The institution Balika Bani Vidyalaya, Chinsurah was not a Company within the meaning of the Land Acquisition Act, 1894, but the acquisition was for a public purpose and therefore valid.
Issues: 1. Whether Order 22 of the Code of Civil Procedure, 1908 is applicable to writ proceedings? 2. Whether the entire appeal abates by reason of the death of one of the appellants whose heirs and legal representatives have not been brought on record within the time allowed by law? 3. Whether the notices issued on the basis of Section 47 of the Land Acquisition Act, 1894 are illegal and without jurisdiction? 4. Whether the institution Balika Bani Vidyalaya, Chinsurah was not a Company within the meaning of the Land Acquisition Act, 1894 and as such no notification under Section 4 or any declaration under Section 6 of the Act could be made for acquisition of land for a playground and hostel for the students and teachers of the said Institution?
Ratio Decidendi: 1. Section 141 of the Code of Civil Procedure, 1908, which provides that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction, attracts writ proceedings under Article 226 of the Constitution of India. 2. Order 22 of the Code of Civil Procedure, 1908, which deals with abatement of appeals, is applicable to writ appeals. 3. If one of the appellants dies and his heirs and legal representatives are not brought on record within the time allowed by law, the entire appeal abates. 4. The notices issued on the basis of Section 47 of the Land Acquisition Act, 1894 are not illegal and without jurisdiction, if the Collector or an Officer specially appointed by the Government to perform the functions of a Collector under the Act applies to a Magistrate to enforce surrender of the land. 5. The acquisition of land for a playground and hostel for students and teachers of an educational institution is a public purpose, even if the institution is not a Company within the meaning of the Land Acquisition Act, 1894.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is an appeal from an Order of G. K. Mitter, J. dated the 27th August 1959 discharging a Rule issued under Article 226 of the Constitution.
( 2 ) THE appellant No. 1 Krishnalal Sadhu (since deceased) and the appellants Nos. 2, 3 and 4 were the owners of C. S. plots Nos. 5246, 5248, 5249 and 5250 of mouza Chinsurah in the district of Hooghly measuring more or less 13 eottahs or Order 271 acres of land. On the 9th June 1946 a notification was issued under Section 4 of the Land Acquisition Act for acquisition of the said plots. In the said notification it was stated that the said plots were likely to be required to be taken by Government partly at the public expense and partly at the expense ot Chinsurah Balika Bani Mandir H. E. School for a public purpose, namely, for a playground and hostel for students and teachers of the said Institution. After the issue of the said notification objections were invited under Section 5-A of the Land Acquisition Act. The appellant Krishnalal Sadhu preferred objections. The Laud Acquisition Officer held an enquiry and after certain proceedings and correspondence a declaration under Section 6 of the Land Acquisition Act was published on the 13th July 1950. On the 1st June 1951 the appellants moved this Court under Article 226 of the Constitution and a Rule was issued being Civil Rule No. 1209 of 1951. On the 24th July 1953 this Rule came up for hearing before me sitting singly and the only ground that was argued at the time was that the acquisition was not a bona fide one. This Rule was discharged by me and against this Order an appeal was preferred being Appeal from Original Order No. 144 of 1954. This appeal came up for hearing before a Division Bench of this Court presided over by Chakravortti, C. J. and A. K. Sarkar, J. on the 9th February 1956 but the said appeal was dismissed. On the 21st June 1957 two notices were issued by P. Dutta, Magistrate, Second Class, Chinsurah, intimating that possession of the land and homestead in plot Nos. 5246, 5248, 5249 and 5250 in mouza Chinsurah which had been acquired by the Government in L. A. Case No. V-II of 50-51 will be taken on the 26th June 1957. One of such notices was addressed to the appellant No. 1 Krishnalal Sadhu and the other notice was addressed to the appellants Nos. 2, 3 and 4 and they were directed to deliver vacant possession on the date fixed in the notice. In the notice addressed to respondents Nos. 2, 3 and 4 respondent No. 2 was described as insane and respondents Nos. 3 and 4 as minors represented by guardian Sri Krishnalal Sadhu. It is alleged in the petition that since dismissal of the appeal on the 9th February 1956 up to the issuing of the notice dated the 21st June 1957, no steps had been taken by the Government and the appellants continued in possession of the plots in question but on the 26th June 1957 the respondents came with Police Force to take possession, but they were not successful in taking possession. Thereafter the appellants again moved this Court under Article 226 of the Constitution challenging the legality of the two notices dated 21st June 1957 on several grounds and besides the original petition affirmed on the 28th June 1957 the appellants also filed a supplementary petition affirmed on the 5th July 1957 in support of the application under Article 226 of the Constitution. On the 8th July 1957 Sinha, J. issued a Rule Nisi limited to grounds Nos. I and III as set out in paragraph 37 of the original petition. The said grounds are as follows :-"i. For that notices marked as annexure "c" and "g" to this petition purporting to take delivery of possession contravene the provisions of the Section 3 (c) of the Land Acquisition Act, inasmuch as they have been issued by a Second Class Magistrate who is not attached to the Land Acquisition Department and he is not an officer specially appointed by the appropriate Government to perform the functions of the Collector Milder the Act. III. For that t
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