Shelat, J. - (1.) One Arunshashi Dasi, Charu Chandra Sur and Jotish Chandra Sur were the owners of the suit land admeasuring 1.15 acres situate in Rishra Municipality, West Bengal. On November 15, 1920 they leased the land to Srikrishna Goshala on September 10, 1924, the said Goshala sold its leasehold interest in the said kind to the 1st respondent Society on September 5, 1935 the Society sold the said leasehold interest to one Sovaram Sarma. In 1941, the said Jotish Sur filed a Rent Suit against Sovaram and obtained an ex parte decree against him. On September.9, 1941 the said Jotish in execution of the said decree and at an auction sale held thereunder purchased sovaram's interest and took possession of the land. Thereafter, Sovaram's widow and son flied a suit against the said Jotish alleging that as Sovaram had died during the pendency of the said suit the decree passed against him was nullity and so also the auction sale. On June 27, 1945 the said suit was decreed against the said Jotish and appeals by him against the said decree both in the District Court 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. 6000 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 Sovaram'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 appears, he was the prime spirit. On July 1, 1946 the State Government issued the notification under Section 4 of the Land Acquisition Act in respect of the suit land. An inquiry under S. 5-A was held and thereafter on April 18, 1951 the Government issued the notification under Section 6 and passed the necessary order under Section 7. On December 22, 1951 the 1st respondent Society purchased the leasehold interest in the said land from Sovaram's widow and son after their suit was finally disposed of but after the said notification under Section 6 was issued. The 1st respondent Society then flied the present suit against the State of West Bengal, the said Swaika and other members of the managing committee of the said school for a declaration that the said notifications and the proceedings taken thereunder were mala fide and null and void and for an injunction against the Government taking possession of the said land.
(2.) The Trial Court framed five issues but so far as this appeal is concerned the relevant issue is issue No. 3. viz.., "Is the plaintiff entitled 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 respondent Society failed to establish the allegations as to male fides and abuse of 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 determination were (1) whether the said acquisition proceedings were male fide and in fraud of the Act and therefore null and void and (2) whether the Society was entitled to an injunction against the Government taking possession of the said land.
(3.) 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 the 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 Section 6 did not prove such satisfaction. The District Judge, however, dismissed the application for amendment of the plaint by the 1st respondent Society. The contention was sought to be raised because the notification used the 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 purpose.'' The argument was that the said words 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 Section 6 notification was not in proper form and the acquisition 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 Judge has answered it in the following terms:- "Whatever language may be used in the declaration under Section 6 the point that requires for consideration is whether the executive authority did actually form an opinion about the requirement of the land for public purpose. So far as the present declaration (Ex. 10-A) is concerned it will go to 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 this reasoning he dismissed the appeal. The District fudge also agreed with the findings of the Trial Court that the 1st respondent Society tailed to prove male fides on the part of the Government or the misuse of its power under the Act.;