- (1.) THIS is an appeal against an order passed by Banerjee, J on the 18th august, 1965 whereby he summarily rejected the application for the issue of a Rule.
(2.) THE facts in this case are shortly as follows :-The appellant states that he is an adopted son of Rajmohini Dassi (deceased), who was the sole owner of a plot of land bearing Dag No. 683 with a tank and a structure thereon in c. s, khatian No. 830, Mouza Gopalpur, P. S. Bediala in the district of 24 Parganas. On or about the 6th February, 1960 a notification was issued under section 4 of the Land Acquisition Act (hereinafter referred to as the "said Act"), a copy whereof is Annexure "b" to the petition and is set out at pages 22 and 23 of the paper-book. By that notification, it was stated that it appeared to the Governor that the land is likely to be needed for a public purpose, namely, for construction of a paint and allied factory and quarters of workers of Messrs. P. C. Chanda and Company limited in the village of Gopalpur, p. S. Behala in the district of 24 parganas. Several plots including the plot above mentioned measuring more or less 11. 97 acres were likely to be needed for the aforesaid public purpose at the expense of M/s. P. C. Chanda and Co. Limited. Shortly after the publication of this notification in the Calcutta gazette on 25th February 1960 the lady, rajmohini Dassi, preferred objections and started a Land Acquisition Case No. 4/35 of 1959-60. A notification dated the 12th April 1961 was issued and published :in the Calcutta Gazette on the 27th april 1961 a copy of which is Annexure "c" to the petition and is set out at page 24 of the paper-book by which the notifications dated 6th February 1960 under section 4 of the said Act was cancelled. On the 11th May 1961 a notification under section 4 of the said Act dated 1st May 1961 was published whereby it was notified that the land was likely to be needed for a public purpose, not being a purpose of the Union, namely for industrial development in the village of Gopalpur. For this purpose several plots including the plot above mentioned of the area more or less 16. 90 acres were stated as likely to be needed for a public purpose as aforesaid, at public expense, within the village of Gopalpur. Two points must be noted here. Firstly that the object was not acquisition for purposes of the company but for industrial development in the village of Gopalpur and secondly that it was not to be done at the expense of the Company but at public expense. On 6th September 1962 a declaration was published under section 6 of the said Act dated 17th August 1962 a copy whereof is Annexure "e" to the petition and is set out at page 27 of the paper-book. By the said declaration, it was declared that the Governor was satisfied that certain plots of land measuring more or less 12. 58 acres were needed for a public purpose, namely, for industrial development of the village of Gopalpur. In the meanwhile, the lady Rajmohini Dassi had died and the petitioner applied and got himself substituted in the records of the Land acquisition case. On the 28th January 1963 the appellant put in a claim for compensation in respect of the plot acquired and thereupon there was an award made, awarding him compensation. This award exists and has not been challenged by any competent legal proceeding. On the other hand, what the appellant did was to make an application under section 18 of the said Act for reference to a Civil Court, regarding the quantum of compensation. Thereafter, sometime in July 1964 possession was delivered and disputes arose about the possession. But the ultimate result is that the appellant seems to be in possession of one room in the structure and the rest are in possession of the Company, because after the government took possession of land, possessios thereof was delivered to the company, Messrs. P. C. Chanda and company Limited, which is a public limited company. The case made out in the petition, as will be seen from the grounds in paragraph 27 of the petition, is that the land was needed for a Company but the provisions of chapter VII of the Land Acquisition act has not been complied with. Before us also, this argument was repeated but in addition an argument has been made as follows : It is argued that the acquisition is fraudulent and is a colourable device to get over the provisions of law. To start with, there is not a single mention of fraud or colourable transaction in the petition, and there is not a single ground relating thereto all that has been pointed out to us is that in paragraph 18 of the petition 11 has been said that the requisition has been made at the instance of the company and was "collusive and mala fide. ' this paragraph has been verified a 'true to submission' and no particular whatever of either collusion or mala fides have been given. So far as this general charge is concerned of collusion and mala fides, there has been a general denial. In the affidavit-in-reply for the first time it came to be stated that the acquisition was "colourable" (vid the affidavit of Shri Tincori Das affirmed on 17. 1. 1966, paragraph 5, and a affidavit of Shri Tincori Das affirmed on the same date, paragraph 3, page 79-81 of the paper-book ). Firstly, the allegation is made for the first time in the affidavit-in-reply to which of course the other side has no opportunity of giving a rejoinder, and secondly, no particulars whatever have been given in the affidavit-in-reply. Even in the affidavit-in-reply, the word "fraud" has not been mentioned.
(3.) I shall now proceed to consider these grounds and as to whether a prima facie case has been made out. The position in law is quite clear on the proposition that under the provisions of the said Act, an acquisition can be made for a public purpose and also for a Company. Where the acquisition is for a public purpose at the expense of the State or even where it is an acquisition for a Company but at the expense of the State or partly at the expense of the State, then the provisions of section 6 (3) come into operation. The relevant provisions of section 6 are as follows : "6 (1) Subject to the provisions of part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5a, sub-section (2), that any particular land is needed for a public purpose or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders : provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be ; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing. ";