Lahiri, J. - (1.) This appeal is directed against an order of Sinha J. dated 5-1-1954, issuing a writ of mandamus upon the appellant (corporation of Calcutta as well as the State of West Bengal, directing them to forbear from proceeding to acquire the un-acquired portion of premises No. 67, Pipe Road within police station Watgunge, District 24-Parganas. The facts are these: in 1927 the Corporation of Calcutta prepared a scheme for the development of the Mansatala area in Kidderpore by construction of cross roads, providing for children's playground and widening of Manashatala Lane and at their instance the then Government of Bengal started acquisition proceedings in respect of an area of 15 Bighas and 11 cottas. For that purpose, a declaration under Section 6 of the Land Acquisition Act, being Notification No. 12239 L. A. dated 29-7-1927 was published in the Calcutta Gazette on 4-8-1927. The declared area comprised within itself premises No. 67, Pipe Road (formerly 21, Dent Mission Road) measuring about 11 cottas with a two-storied building and other structures standing thereon which belonged to one Torab Ali Serang since deceased. The scheme prepared by the Corporation provided not only for the acquisition of land for road alignment but also acquisition of surplus land for the purpose of recoupment. The Government, however, did not proceed with the acquisition of the entire area belonging to Torab Ali Serang and acquired only an area of 4 Cottas 4 Chittaks 20 sq. ft. which was covered by road alignment. On 7-3-1932, the Land Acquisition Collector made an award in respect of the acquired area of which possession was taken by the Corporation of Calcutta and a street made thereon. On 4-4-1932, the said Torab Ali Serang applied to the Corporation of Calcutta for exemption of the unacquired portion from acquisition which was ultimately rejected on 29-8-1935. Thereafter the Corporation of Calcutta requested the Land Acquisition Collector to furnish an estimate of cost for the acquisition of the un-acquired portion and according to the estimate of the Land Acquisition Collector, a sum of Rs. 17,760/- was deposited by the Corporation in the Reserve Bank of India on 29-7-1938. A second application by Torab Ali Serang for exemption was rejected by the Corporation on 15-12-1939 and the Land Acquisition Collector was requested to deliver possession of the land by a letter dated 29-1-1940. Thereafter Torab Ali Serang died and his son Abdul Rahman who is one of his heirs filed a third application for exemption on 9-9-1940. Nothing appears to have been done by the Corporation on this application and ultimately on 18-4-1949 the Land Acquisition Collector was requested to proceed with the acquisition. Thereafter the land acquisition proceeding was revived and a notice under Sections 9 and 10 of the Land Acquisition Act was served upon the heirs of the deceased Torab Ali Serang on the basis of the declaration published in the Calcutta Gazette on 4-8-1927. The heirs of Torab Ali Serang, who are the petitioners in this case and respondents before us, then filed an objection before the Land Acquisition Collector, claiming that the revival in 1951 of a land acquisition proceeding started In 1927 was illegal and invalid. The Land Acquisition Collector gave effect to the objection and dropped the proceeding by an order dated 21-8-1951 against which the Corporation filed a representation before the Government. The Assistant Secretary Land and Land Revenue Department, Government of West Bengal, by his letter No. 10732 L. A. dated 1-7-1952 pointed out to the Land Acquisition Collector that he had no jurisdiction to drop the proceeding, because under Section 48 of the Land Acquisition Act, it was only the Government which was competent to withdraw a proceeding, before possession was given. He accordingly directed the Land Acquisition Collector to proceed with the acquisition of the remaining portion of premises No. 67, Pipe Road (formerly 21, Dent Mission Road). Against this order, the heirs of Torab Ali Serang moved this Court under Article 226 of the Constitution for a writ of mandamus upon the State of West Bengal as also upon the Corporation of Calcutta, directing them to forbear from acquiring the unacquired portion of premises No. 67, Pipe Road on the strength of Notification No. 12239 L. A. published in the Calcutta Gazette on 4-8-1927.
(2.) Sinha J. who heard the rule made it absolute and directed a writ to issue in terms of the prayer made by the petitioners, inter alia, on the ground that piecemeal acquisition was not permissible in the circumstances of the present case. In coming to his conclusion, Sinha J. has followed an earlier decision of this Court in the case of -- 'R. C. Sen v. Trustees for the Improvement of Calcutta', AIR 1921 Cal 340 (A). Against this decision of Sinha J. the Corporation of Calcutta has filed one appeal which is Appeal from Original Order No. 87/54 and the State of West Bengal has filed another appeal which is appeal from Original Order No. 201-54.
(3.) In the course of argument before us, a question arose as to whether the declaration under Section 6, Land Acquisition Act, as published in the Calcutta Gazette on 4-8-1927 was a valid declaration in view of the fact that it merely stated in the recital that it appeared to the Governor in Council that land was required to be taken by Government at the public expense for a public purpose whereas, according to Section 6 of the Land Acquisition Act, as amended by Act 38 of 1923 the proper recital should be that the Local Government was satisfied after considering the report made under Section 5A, Sub-section (2) that any particular land was needed for a public purpose. Under Section 6, as it stood before the amendment of 1923, it was sufficient to state in the declaration that the Government was satisfied that any particular land was needed for a public purpose. The amendment of 1923, however, has introduced more stringent provisions. By Section 3 of the Amendment Act 38 of 1923, Section 5A, has been inserted after Section 5 of the Land Acquisition Act and Section 4 of the Amendment Act is-in the following terms: "4. In Sub-section (1) of Section 6 of the said Act, for the words "wherever it appears to the Local Government" the following shall be substituted, namely: "When the Local Government is satisfied after considering the report, if any, made under Section 5A, Sub-section (2).";