Case: Patna Improvement Trust Vs. Smt. Lakshmi Devi & Others

Kapur, J. ( for himself and S. J. Imam and J. R. Mudholkar, JJ.) 1. In these appeals by special leave against the judgment and order of the High Court of Patna a common question of law arises as to the interpretation of the provisions relating to acquisition under the Bihar Town Planning and Improvement Trust Act 1951, Act 35 of 1951, hereinafter called the "Bihar 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. 2. On January 19, 1961, 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 dale the State of Bihar proposed to acquire 54.08 acres of land. The respondents challenged the legality of the notice under S. 4 of the Land Acquisition Act by their respective applications for writs under Art. 226 of the Constitution. These notifications were quashed by a writ in the nature of certioraris by the High Court of Patna and against that judgment and order the Patna Improvement Trust has brought these appeals by special leave. 3. 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 Trusts 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 regards 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. By S. 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 Acquisition Act 1894. For the purpose of acquiring land for Trust under the Land Acquisition Act, 1894 (1 of 1894) (a) the said Act shall he subject to the modifications specified in the Schedule". 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(1) provides :C. 2(1) "The first publication of a notice of an improvement scheme under S. 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 sub-section (1) of Section 4 of the said Act, except where a notification under sub-section (1) of S. 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 sub-section (1) of S. 50 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 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 S. 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 S. 52 of that Act shall be substituted for and have the same effect as a declaration under S. 6 of the said Act, except where a declaration under the last mentioned section has been previously made and is in force". Clause 2 (2) provides that proceedings under S. 48 and S. 50 (1) of the Bihar Act shall be substituted for and have the same effect as proceedings under S. 5A of that Act. Clause 2(3) of 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 of 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. 4. 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 the 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 inconsistent Acts and could not operate in the same field. The High Court decided the petition on the principle, generalia specialibus non 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 acquisition of lands in general. Therefore the State Government had no. authority to take steps for acquisition of land for the purpose of the Improvement Trust under the general provisions of the Land Acquisition Act 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 vires 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 master plan under S. 33 of the Act or without following the procedure under S. 42A of the Act this last section having been introduced into the Bihar Act by an Amending Act of 1956. 5. 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 modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the schedule. Therefore even for the purpose of acquiring 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 sub-cl. (1) of c. 2 of the Schedule. There a first notice under S. 46 of the Bihar Act is substituted for and has the same effect as a notification under S. 4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S. 4 (1) 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 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. 6 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 Hendersons Trustees v. Dunfermline District Committee, 37 SC LR 119 on similar words viz "previously in use". Lord Justice Clerk construed these words as not being equivalent to prior to the passing of a statute. That the power of the State Government 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 of 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 such maps and such descriptive matters as may be necessary to illustrate any proposal of schemes with such degree of details as may be appropriate to different parts of the areas, and any such master plan may in particular (a) ................ (b) Designate as land subject to compulsory acquisition by the State Government, the Trust, the planning authority appointed under S. 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. 6. Again by clause 1 of the Schedule of the Bihar Act sub-s. (ee) is deemed to be inserted in S. 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. 3 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(1) would be equally available for being put into force for the purpose of a Trust. This again shows that the intention of the legislature 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. 7. The notification issued by the State Government is not therefore invalid and the High Court was in error in holding it otherwise.

Decision reasoning: 1[ds]5. 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 modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act that Act (Land Acquisition Act) shall be subject to the modification specified in the schedule. Therefore even for the purpose of acquiring 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 sub-cl. (1) of c. 2 of the Schedule. There a first notice under S. 46 of the Bihar Act is substituted for and has the same effect as a notification under S. 4(1) of the Land Acquisition Act but that is subject to an important exception and that exception is a notification under S. 4 (1) 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 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. 6 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 Hendersons Trustees v. Dunfermline District Committee, 37 SC LR 119 on similar words viz "previously in use". Lord Justice Clerk construed these words as not being equivalent to prior to the passing of a statute. That the power of the State Government 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 of the Trust6. Again by clause 1 of the Schedule of the Bihar Act sub-s. (ee) is deemed to be inserted in S. 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. 3 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(1) would be equally available for being put into force for the purpose of a Trust. This again shows that the intention of the legislature 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 Trust7. The notification issued by the State Government is not therefore invalid and the High Court was in error in holding it otherwise.