Krishnalal Sadhu And Others v. State Of West Bengal And Others, Calcutta High Court, Judgment, Law, casemine.com

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Case Number

A.F.O.O No. 446 of 1959

Advocates

Arun Kumar Dutt and Bibhuti Bhusan Mukherjee
Nirmal Chandra Chakrabarty
Govt. Pleader
Nirmal Chandra Das Gupta and Nani Copal Das (For Nos. 1 to 3 and 5) and Anil Kumar Sen and Madhusudan Banerjee
(For No. 4)

Judges

H.K Bose, C.J
B.C Mitra, J.

Acts

Rule 10 of the Punjab Land Acquisition (Defence of India) Rules, 1943.
provisions of Order 41 Rule 4 and Order 22 Rule 9 of the CPC
provisions of the Section 3(c) of the Land Acquisition Act,
SECTION 47 LAND ACQUISITION ACT
provisions of Part VII of the Land Acquisition Act
appeal.37. Section 3(c) of the Land Acquisition Act
Order 1 Rule 10 of the Code and O. 19 of the Code
Article 226 of the Constitution, no specific Rule
Sections 39 to 41 of the Land Acquisition Act
provisions of Rule 4 of Order 41 of the CPC
Article 226 of the Constitution and a Rule
provisions of the Land Acquisition Act.40.
ARTICLE 226 CONSTITUTION OF INDIA
provisions of Order 1 Rule 9 of the CPC
Section 3(e) of the Land Acquisition Act
SECTION 5 A LAND ACQUISITION ACT
SECTION 45 LAND ACQUISITION ACT
LAND ACQUISITION ACT
SECTION 4 LAND ACQUISITION ACT
SECTION 6 LAND ACQUISITION ACT
Section 47 of the L.A Act I of 1894
Section 47 of the L.A Act 1 of 1894
provisions of Order 22 of the Code
Land Acquisition Act. Section 3(f)
provisions of Order 41 Rule 4
Order 22 Rule 10 of the CPC
Order 22 Rule 4 of the CPC
proceedings.20. Section 141
Order 1 Rule 1 of the Code
Defence of India Act, 1939.
illegal.32. Section 47
II Rule 2, Sub-rule (5)
Order 41 Rule 4
O. 41 Rule 4
Section 6(1)

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Smart Summary

Factual and Procedural Background

The appellants (Krishnalal Sadhu — appellant No. 1, since deceased — and appellants Nos. 2, 3 and 4) were joint owners of C.S. plots Nos. 5246, 5248, 5249 and 5250 in mouza Chinsurah, Hooghly (about 13 cottahs). On 9 June 1946 a notification under Section 4 of the Land Acquisition Act was issued declaring the plots likely to be required partly at public expense and partly at the expense of Chinsurah Balika Bani Mandir H.E. School for a playground and hostel. Objections under Section 5-A were invited; Krishnalal Sadhu objected. After enquiry a declaration under Section 6 was published on 13 July 1950.

The appellants filed a writ petition under Article 226; Civil Rule No. 1209 of 1951 issued. A single Judge (Bose, C.J.) discharged the Rule on 24 July 1953; an appeal (Appeal from Original Order No. 144 of 1954) to a Division Bench was dismissed on 9 February 1956. Notices dated 21 June 1957 (addressed to appellant No. 1 and to appellants Nos. 2–4) directed delivery of vacant possession on 26 June 1957 under Section 47 of the Land Acquisition Act. Attempts to take possession on 26 June 1957 failed due to resistance.

The appellants again moved the High Court under Article 226, filing an original petition (affirmed 28 June 1957) and a supplementary petition (affirmed 5 July 1957). A Rule Nisi limited to grounds I and III (para. 37 of the petition) was issued on 8 July 1957. The Rule was heard by G.K. Mitter, J., who discharged it by judgment dated 27 August 1959. This appeal challenges that order.

During pendency of the appeal appellant No. 1 died. An application to add his heirs/representatives was made but was not pressed; the Court dismissed the application and proceeded. Respondents raised a preliminary objection that the appeal had abated for want of substitution of the deceased's legal representatives, and that the entire appeal was therefore not maintainable.

Legal Issues Presented

Whether the appeal has abated as a whole by reason of the death of appellant No. 1 (Krishnalal Sadhu) without substitution of his heirs or legal representatives, and if so, whether the appeal is maintainable.
Whether notices dated 21 June 1957 (annexures C-1 and C-2) issued by a Second Class Magistrate to take possession under Section 47 of the Land Acquisition Act were valid — specifically, whether such enforcement and the notices complied with Section 47 and other relevant provisions (including Section 3(c) and Section 45) of the Act.
Whether the acquisition for Chinsurah Balika Bani Mandir (a school not a "Company" under the Act) was for a public purpose and thus valid — i.e., whether notification under Section 4 and declaration under Section 6 were legal and not a colourable exercise of power.

Arguments of the Parties

Appellants' Arguments

Ground I (para. 37): The notices dated 21 June 1957 contravened Section 3(c) of the Land Acquisition Act because they were issued by a Second Class Magistrate who was not attached to the Land Acquisition Department and was not an officer specially appointed by the appropriate Government to perform the functions of the Collector under the Act; therefore they were invalid.
Ground III (para. 37): The institution Chinsurah Balika Bani Vidyalaya is not a "Company" within the meaning of the Act; therefore the notification under Section 4 and the declaration under Section 6 were illegal and without jurisdiction (arguing acquisition was for a private purpose for the Institution).
Appellants also contended the authorization to the Magistrate to enforce Section 47 was not in accordance with law and that obstruction reported did not justify recourse to Section 47; they alleged the two notices were not issued by an officer specially appointed by the State and were thus without jurisdiction.
Appellants argued that Order 22 CPC (abatement rules) does not apply to writ proceedings under Article 226 because Article 226 jurisdiction is extraordinary/original and not a suit; therefore the appeal should not abate on the death of a party.

Respondents' Arguments

Respondents maintained that after dismissal of the earlier appeal the Land Acquisition Office repeatedly requested delivery of possession and, following failed attempts by departmental officers/kanungo, the Land Acquisition Officer (on behalf of the Collector) applied under Section 47 to the Sub-Divisional Magistrate to enforce delivery of possession — the Sub-Divisional Officer authorized a Second Class Magistrate to act on his behalf; the magistrate issued notices and attempted to take possession on 26 June 1957 but failed due to resistance.
Respondents raised a preliminary objection that the appeal had abated in its entirety because appellant No. 1 died and his heirs/legal representatives had not been brought on record within the time required by law; they relied on a line of Supreme Court decisions to support the proposition that where joint interests exist and one appellant dies without substitution, the appeal may abate.
Respondents asserted that facts show application under Section 47 was competent (the letter of 27 May 1957 was on behalf of the Collector and the Sub-Divisional Officer validly deputed a Second Class Magistrate), and that Section 47 does not prohibit a Magistrate from authorizing subordinate magistrates to take possession on his behalf.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Punjab v. Nathu Ram, AIR 1962 SC 89	Principle that where there is a joint decree/award and one joint decree-holder dies without substitution, the appeal may abate as to the surviving respondents because the appellate Court cannot modify the decree as regards the deceased's share.	Relied on to show that where appellants are joint owners and one appellant died without substitution, the appeal should be treated as abated in its entirety.
Ram Samp v. Munshi, AIR 1963 SC 553	Decision that where a decree is joint and a part becomes final by abatement (due to death of an appellant), the entire appeal may abate.	Adduced as supporting precedent for the proposition that a joint decree/interest leads to abatement of the whole appeal on death of a joint appellant not substituted.
Rameswar Prosad v. Sham Behari Lal, AIR 1963 SC 1901	Explains the principle behind Order 41 Rule 4 CPC and holds appellate Court cannot proceed to reverse/modify a decree in favour of all plaintiffs/defendants under O.41 R.4 when the decree proceeds on a ground common to all and an appellant dies leaving his appeal abated.	Cited as authoritative Supreme Court exposition; the Court relied on the reasoning to support conclusion that the appeal cannot proceed in the absence of substituted heirs for the deceased appellant.
Santosh Kumar Mondal v. Nandalal Chakrapani, AIR 1963 Cal 289 (Full Bench)	Held that under O.41 R.4 the appellate Court could proceed and reverse the decree despite omission to bring heirs on record (i.e., a contrary view to the Supreme Court majority view).	Noted by the Court but observed that the Full Bench decision had been impliedly overruled by the Supreme Court authority cited earlier.
Budge-Budge Municipality v. Mungru Mia, AIR 1953 Cal 433 (Full Bench)	Cited as authority for the proposition that Article 226 jurisdiction is extraordinary/original and CPC provisions are not generally applicable.	Quoted by appellants; the Court considered it but held that Section 141 CPC applies to Article 226 proceedings and that procedural provisions of CPC as far as applicable are attracted.
Bharat Board Mills Ltd. v. Regional Provident Fund Commissioner, AIR 1957 Cal 702	Cited in support of the view that certain CPC provisions (e.g., O.27-A or Section 141 exceptions) do not apply to Article 226 proceedings (incidental observation).	Referred to by appellants; Court held Section 141 does attract CPC provisions to Article 226 proceedings and thus abatement rules may apply.
State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946	Held that jurisdiction under Article 226 is not appellate/revisional but an extraordinary original jurisdiction.	Cited by appellants to argue CPC abatement rules should not apply; Court noted the decision but relied on Section 141 to conclude CPC rules can apply to Article 226 proceedings.
Khajoor Singh's case, AIR 1961 SC 532	Authority for the proposition that a proceeding under Article 226 could not be treated as a suit.	Cited by appellants to argue non-applicability of CPC abatement provisions; Court distinguished by applying Section 141 CPC and other authorities to hold that certain CPC provisions (including Order 22) can apply to writ appeals.
Nimar Cotton Press v. Sales Tax Officer, AIR 1956 Nag 27	Observed that Article 226 proceedings are civil proceedings and, subject to the Court's rules, are regulated by the Code of Civil Procedure.	Used by the Court as supporting authority for the proposition that Section 141 CPC applies and CPC procedure can be followed as far as applicable in Article 226 proceedings.
(Unnamed) Andhra Pradesh decision, AIR 1956 Andh Pra 16	Held an application under Article 226 is a proceeding in a Court of civil jurisdiction and provisions of O.1 & O.2 CPC can be invoked as far as applicable.	Adduced by the Court as further support that CPC provisions are applicable to Article 226 proceedings.
Manindranath v. Baranagore Municipality, AIR 1956 Cal 291	Expressed view that provisions of Order 1 of CPC could be followed in writ proceedings.	Referred to in support of applying CPC rules to writs; Court cited it as consistent with the position that CPC can apply where suitable.
Dan Singh Bist v. Additional Collector, Bijnor, AIR 1960 All 152	Expressed similar view (CPC applicability to Article 226 proceedings).	Referred to as supporting the Court's conclusion that CPC provisions (like Order 22) can have application to writ appeals.
State of Rajasthan v. Ugam Singh, AIR 1961 Raj 268	Also expressed that CPC provisions can apply to writ proceedings.	Used in the Court's analysis to show multiple High Courts take the view that CPC provisions are applicable.
The Justices of the Peace for the Town of Calcutta v. The Oriental Gas Co. Ltd., (1872) 17 WR 364	Held that a proceeding for a writ of mandamus is a civil proceeding.	Cited by the Court historically to support the proposition that writ proceedings are civil proceedings and thus subject to procedural rules of civil jurisdiction.
Jhandulal v. State of Punjab, AIR 1961 SC 343	Held that where acquisition is for a Company and also for a public purpose with part-cost borne by public funds, Part VII compliance is not essential.	Relied on by the Court to support that where acquisition costs are shared between State and institution, Part VII need not be strictly applied and acquisition may still be for a public purpose.
Somawanti v. State of Punjab, AIR 1963 SC 151	Discussed meaning and ambit of "public purpose" under Land Acquisition Act and accepted that a small state contribution may suffice depending on facts.	Relied on by the Court to hold acquisition for a playground and hostel for an educational institution qualifies as a public purpose and that a token state contribution does not necessarily make the acquisition colourable.
Amarendranath Nath v. State of West Bengal, (1963) 67 Cal WN 647	Division Bench decision noting that small public contribution does not necessarily negate public purpose.	Invoked to support the conclusion that the small public contribution here does not invalidate the acquisition as a public purpose.
Amalgamated Coal Fields Ltd. v. Janapada Sabha Chindwara, (1963) 2 SCA 145 : AIR 1964 SC 1013	Supreme Court decision relevant to constructive res judicata in writ proceedings (referenced by appellants).	Cited by appellants to challenge the trial Judge's application of constructive res judicata; Court noted the point but did not express opinion on it because other findings disposed of the appeal.
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457	Cited by respondents in submissions (specific rule in text not elaborated).	Referred to by respondents; the Court mentioned it among authorities but did not hinge its decision solely on it.
Makhanlal Roy v. State of West Bengal, AIR 1963 Cal 6	Bench decision of Calcutta High Court referenced in submissions (specific principle not elaborated in the opinion).	Referred to in argument; the Court did not need to decide on that point in view of other findings.
ILR 19 Pat 870 : AIR 1940 Pat 346 (Full Bench) and related High Court authorities (Amin Chand v. Baldeo Sahai; Vanak v. Ahmad Ali; Pyarelal v. Sikharchand; Reghu Sutar v. Nrusingha Nath; Venkata Ram Rao v. Narayana; Sonahar Ali v. Mukbal Ali)	These cases were cited in the Supreme Court's survey (in Rameswar Prosad) as part of the majority of High Courts taking the view that appeals abate where a joint appellant dies and is not substituted.	The Court used the Supreme Court's compilation of these authorities to demonstrate that the majority view supports abatement; this informed the Court's conclusion that Order 22 principles apply to writ appeals.
Shripad Balwant v. Nagu Kushaba, AIR 1943 Bom 301; Satulal Bhattacharjee v. Asireddi Sheikh, AIR 1934 Cal 703; Soma Sundaram Chettiar v. Vaithilinga Mudaliar, AIR 1918 Mad 794	Examples cited of Bombay, Calcutta and Madras High Courts taking a different view (permitting appeal to proceed despite death and omission to bring heirs on record).	Noted by the Court as representing the minority view; the Court treated the Supreme Court's later pronouncements as displacing the Full Bench Calcutta decision that had followed such views.

Court's Reasoning and Analysis

The Court's reasoning proceeded in two broad stages: (A) the threshold procedural issue of abatement/substitution and applicability of CPC abatement rules to Article 226 writ appeals; and (B) merits analysis of the specific grounds on which the Rule had been issued (validity of Section 47 notices and whether acquisition was for a public purpose).

A. Applicability of CPC abatement rules and conclusion on abatement:

The Court acknowledged the appellants' submission that Article 226 jurisdiction is extraordinary/original and not a "suit", citing authorities to that effect (including Budge-Budge FB and cases like State of U.P. v. Dr. Vijay Anand Maharaj and Khajoor Singh). However, it concluded that the settled position is that Article 226 proceedings are proceedings in a Court of civil jurisdiction and that Section 141 CPC ("procedure in suits applied as far as applicable") is attracted to such proceedings.
The Court surveyed High Court and other decisions (Nagpur, Andhra, Allahabad etc.) supporting application of CPC rules to writs, and historical authority that writs (e.g., mandamus) are civil proceedings. On this basis the Court rejected the argument that the abatement rules in Order 22 CPC cannot apply to writ proceedings.
The Court then examined Appellate Side Rules and Writ Rules of the High Court (Rule 30, Rule 43 and Appellate Side provisions) which contemplated substitution/amendment on death and thus presupposed applicability of Order 22 principles to writ appeals.
Applying these principles to the facts, the Court observed that the appellants were joint owners with undivided interests and there was no allegation of separate defined shares. The death of appellant No. 1 without substitution therefore caused abatement of the appeal as a whole because the earlier order discharging the Rule had become final as regards the deceased appellant and the Court could not modify that final position in the absence of the deceased's legal representatives without causing conflict of decisions.
The Court relied on Supreme Court authorities (e.g., State of Punjab v. Nathu Ram, Ram Samp v. Munshi, Rameswar Prosad) explaining that where a decree/order proceeds on a common ground and joint appellants exist, the appeal cannot be prosecuted by surviving appellants alone if abatement has occurred as to one appellant.
Conclusion: the preliminary objection succeeds — the appeal has abated in its entirety by reason of the death of appellant No. 1 without timely substitution.

B. Merits (though the Court held abatement was dispositive, it proceeded to consider and record findings on merits):

Validity of notices dated 21 June 1957 (Ground No. 1):
- Section 47 permits the Collector, if impeded in taking possession, to apply to a Magistrate to enforce surrender of land; the Magistrate (or Commissioner of Police in specified towns) shall enforce surrender to the Collector. The Court interpreted Section 47 as allowing application to a Magistrate and did not require that the magistrate who receives the application personally enforce surrender; a magistrate could deputise a subordinate (e.g., a Second Class Magistrate) to act on his behalf.
- The Land Acquisition Officer's 27 May 1957 letter was written on behalf of the Collector (letterhead and wording showed it was from the Collector's office). The Sub-Divisional Officer's 18 June 1957 letter authorised P.C. Dutta (Sub-Deputy Magistrate, Second Class) to act as a Magistrate on his behalf under Section 47.
- The Court found no substance in the appellants' contention that a Second Class Magistrate could not validly enforce surrender or issue the notices; nothing in Section 47 forbids deputation or the involvement of a Second Class Magistrate acting under authority from a Magistrate to whom the application was made.
- The Court also rejected the contention that the notices had to comply with Section 45 service requirements because the notices C-1 and C-2 were merely intimation letters and were not notices required by the Act; Section 45 therefore did not render them invalid.
Validity of acquisition for Chinsurah Balika Bani Mandir (Ground No. 3):
- The Court accepted that the school was not a "Company" under the Act (Section 3(e)). However, both the Section 4 notification and Section 6 declaration expressly stated that the land would be taken partly at public expense and partly at the expense of the school for a playground and hostel.
- The Court analysed the Act's scheme: acquisitions may be for (a) public purpose (cost borne wholly or partly from public revenues or local authority funds) or (b) for a Company (where Part VII applies). Where acquisition is partly public purpose and partly for an institution, Part VII need not strictly apply — the acquisition is treated as for a public purpose if public funds bear part of the cost.
- Relying on Supreme Court authority (Jhandulal; Somawanti) and High Court decisions, the Court held that providing a playground and hostel for an educational institution serves the general interest of the community and constitutes a public purpose. A small state contribution (even Rs. 100, by analogy to cited authority) does not necessarily make the exercise colourable; whether contribution suffices is a factual question. The earlier single-Judge and Division Bench findings rejecting mala fides had become final as to the appellants previously and were not open to be relitigated.
- Conclusion: the challenge to the notification and declaration (on the ground that the school was not a Company and acquisition was private) lacked substance and failed on the merits.

Holding and Implications

Holding:

DISMISSED — The appeal is dismissed. The Court held that the appeal had abated as a whole by reason of the death of appellant No. 1 (Krishnalal Sadhu) whose heirs and legal representatives had not been brought on record within the time allowed by law. The Court additionally found, on the merits, that the notices dated 21 June 1957 and the acquisition were valid and the appellants' contentions on those grounds failed.

Implications / Consequences:

Direct effect on parties: The Rule discharged by G.K. Mitter, J. (27 August 1959) stands; the appellants' challenge to possession and to the acquisition fails. The appeal is dismissed with costs assessed at five Gold Mohurs for each set of appearing respondents.
Procedural implication: The Court concluded that Order 22 of the Civil Procedure Code principles concerning abatement and substitution apply to writ appeals under Article 226 insofar as Section 141 CPC makes procedural rules of suits applicable to proceedings in civil jurisdiction; consequently the death of a party without substitution can cause abatement of a writ appeal when the deceased was a necessary/joint party.
No broader precedent beyond the case: The Court observed and applied existing Supreme Court authorities to reach its conclusion; it did not purport to lay down a novel principle beyond applying established abatement jurisprudence to Article 226 writ appeals. The order also kept operation in abeyance for six weeks from date as prayed.

Costs awarded to respondents; operation of the order stayed in abeyance for six weeks as requested by respondents.

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Krishnalal Sadhu And Others v. State Of West Bengal And Others

Bose, C.J:— 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 cottahs or O. 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 of 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 Land Acquisition Officer held an enquiry and alter 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, T. 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 under the Act.

III. For that the institution Balika Bani Vidyalaya, Chinsurah, is not a Company within the meaning of the Act and as such the notification under Section 4 and declaration under Section 6 of the Act are illegal and without jurisdiction.”

3. The respondents to this petition were State of West Bengal (No. 1), Collector of Hooghly (No. 2), Land Acquisition Collector, Hooghly (No. 3), Acting Head Mistress and Secretary, Chinsurah Balika Mandir (No. 4) and Second Class Magistrate, Chinsurah (No. 5). On behalf of the respondents Nos. 1, 2, 3 and five one Parimal Chandra Banerjee who describes himself as a Land Acquisition Officer of the Hooghly Gollectorate affirmed the affidavit-in-opposition on the 3rd November, 1967. In this affidavit it is stated inter alia that after the disposal of the appeal No. 144 of 1954 on the 9th February, 1956 the Land Acquisition Office by a letter directed 20th February, 1956 asked the appellant Krishnalal Sadhu to give delivery of possession by 29th February, 1956. Upon receipt of the said notice Krishnalal Sadhu made a representation in writing praying for time as he intended to file an appeal to the Supreme Court against the decision of the Appeal Court. Time was allowed till 12th March, 1956 but on the 6th March, 1956 Krishnalal Sadhu asked for further time and such time was granted. Thereafter he applied for further extension of time on the 7th April, 1956 and such time was allowed till 8th May, 1956. It appears that thereafter the appellant Krishnalal Sadhu obtained further extention of time on serveral occasions for the purpose of making representations and thereafter some attempt was made to obtain delivery of possession but without any success. On the 27th May, 1957 one Sri N. Ray describing himself as Land Acquisition Officer, Hooghly, wrote a letter to the Sub-Divisional Magistrate, Chinsurah Sadar. The relevant portion of this letter may be set out hereunder:

‘Government of West Bengal, Office of the Collector of Hooghly Land Acquisition Department.

From: The Collector of Hooghly.

Memo No. 1478 L.A dated Chinsurah, the 27 May, 1957.

To: Sub-Divisional Magistrate Chinsurah Sadar, (S.D.O)

Sub: Possession in respect of lands and construction in C.S Plot Nos.

Further attempt to take over possession of the said property was made this day by this Department and Sri N.K Sen this office Kgo. was deputed for the purpose. His attempts to take over failed as will appear from his report hereto enclosed.

Only course is now open to us is to request you to enforce and cause delivery of possession which when obtained may be made over to this Department as provided in Section 47 of the L.A Act I of 1894.

The matter will kindly be treated as urgent and this office may be intimated when an authorised officer will be directed to take over the property from him.

Sd/- A. Ray,

Land Acquisition Officer.

Hooghly.”

4. On the 18th June, 1957 S.C Sen, the Sub-Divisional Officer Sadar, Hooghly wrote;t letter to Sri P.C Dutta, Sub-Deputy Magistrate. Second Class, Chinsurah, Hooghly. The material portion of the letter is set out below:

“Subject: Possession under Section 47 of the Act I of 1894 of Land acquired for Chinsurah Balika Bani Mandir.

The Special Land Acquisition Officer, Hooghly has applied under Section 47 of the L.A Act I of 1894 to enforce possession of the land as description given below, which has been acquired in L.A Case No. V-II of 1950–1951 for Balika Bani Mandir, Chinsurah.

As the Land Acquisition staff has been impeded in taking the possession, so you are requested and hereby authorised to take possession as a Magistrate on my behalf.

The Superintendent of Police, Hooghly has been requested to give necessary Police help for your protection and to maintain peace. You are therefore requested to fix up a convenient date for the purpose very early and the S.P may be informed accordingly.

The Land Acquisition Kgo. may also be informed in time so that he may be present for identifying the lands. Schedule of lands acquired. C.S Plots Nos. 5246, 5248, 5249 and 5250.”

5. It appears that after the said letter dated 18th June, 1957 was written authorising P.C Dutta, Magistrate, Second Class to enforce surrender of the disputed property under Section 47 of the Act, the two notices dated 21st June, 1957 as already stated were issued by Mr. P.C Dutta and on the 26th June, 1957 the said Magistrate along with the deponent Parimal Chandra Banerjee and a Kanungo went to take possession of the land on the 26th June, 1957 but possession could not be obtained on account of resistance offered to such taking of possession.

6. In sub-paragraphs (g) and (i) of paragraph 3 of this affidavit-in-opposition the deponent Parimal Chandra Banerjee has described the two letters issued on the 21st June, 1957 as notices which were issued by Sri Dutta to the appellants.

7. On behalf of the respondent No. 4 one Miss Krishna Dutta has affirmed the affidavit-in-opposition and this affidavit is more or less on the same lines as the affidavit affirmed by Sri Parimal Chandra Banerjee.

8. In the affidavit-in-reply which was affirmed on the 3rd February, 1958 by the appellant No. 3 Govindalal Sadhu it is inter alia stated in paragraph 8 thereof that the authorisation by the Sub-Divisional Officer, Hooghly to the Magistrate, Second Class for the purpose of exercising powers under Section 47 of the Act is not according to law and it is alleged that the obstruction to the Settlement Kanungo was not obstruction to the Collector in taking possession and as such recourse could not he had to the provisions of Section 47 of the Land Acquisition Act. It is further stated that the two notices issued on the 21-6-1957 were not signed or issued by an Officer specially appointed by the State Government of West Bengal to perform the functions of the Collector and Land Acquisition Officer, Hooghly and so the notices were without jurisdiction and no possession could be taken on the basis of the said two notices.

9. The Rule Nisi issued on the 8th July, 1957 came up for hearing before G.K Mitter, J. who by his judgment delivered on the 27th August, 1959 discharged the said Rule. It is against this order that the present appeal has been preferred.

10. Pending disposal of the appeal the appellant No. 1 Krishnalal Sadhu died. An application was made thereafter for adding the heirs and legal representative of Krishnalal Sadhu as arties to the appeal. Objection was taken on behalf of the respondents that as the appeal had abated by reason of the heirs and legal representative of Krishnalal Sadhu not being substituted within the time prescribed by law, the application for addition of the heirs and legal representatives is not maintainable without setting aside the abatement. At the hearing of the appeal the learned Advocate appearing for the appellants Mr. Arun Kumar Dutta has stated that he does not want to press this application for addition of parties inasmuch as the appeal is maintainable and can continue without bringing the heirs and legal representative of Krishnalal Sadhu on record and there is no question of abatement of the appeal so far as appellants Nos. 2, 3, and 4 are concerned, even though the appeal is assumed to have abated so far as the appellant No. 1 Krishnalal Sadhu is concerned by reason of his heirs not having been brought on record within the time allowed by law. In the circumstances, the Court made an Order dismissing the application for addition of parties and proceeded to hear the appeal.

11. Preliminary objection has thereupon been taken on behalf of the respondents as to the maintainability of the appeal and it has been argued that without the heirs and legal representative of Krishnalal Sadhu being brought on record within the time allowed by law, the appeal has abated as a whole and it is not there tore maintainable and should be dismissed.

12. In support of the proposition that the entire appeal has abated, reliance was placed on certain decisions of the Supreme Court. The first decision referred to is reported in AIR 1962 SC 89 State Of Punjab v. Nathu Ram. In this case certain lands belonging to two brothers Labhu Ram and Nathu Ram jointly, were acquired for military purposes under the Defence of India Act, 1939. But as the two brothers refused to accept the compensation offered by the Collector, the State Government referred the matter for enquiry to an Arbitrator under Rule 10 of the Punjab Land Acquisition (Defence of India) Rules, 1943. The Arbitrator passed a joint Award granting a higher compensation and also ordered payment of certain amount on account of income-tax which would be paid on the compensation received. The State Government appealed against the Award to the High Court of Punjab. During the pendency of the appeal Labhu Ram, one of the respondents, died. The High Court of Punjab held that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated and accordingly the High Court dismissed the appeal and also certain cross-objections which had been preferred? The State Government thereupon came up before the Supreme Court on appeal on a certificate granted by the High Court. It was held by the Supreme Court so far as the question of the abatement of the appeal was concerned that the appeal against Nathu Ram alone could not proceed, inasmuch as to get rid of the joint decree it was essential for the appellant State to implead both the joint decree-holders and in the absence of one the appeal was not properly constituted. The subject matter for which the compensation had been awarded was one and the same land and the assessment of compensation so far as Labhu Ram was concerned having become final, there could not be different assessment or compensation for the same parcel of land. It has further been pointed out by the Supreme Court that inasmuch as Order 22 Rule 4 of the CPC does not provide for the abatement of the appeals against the corespondents of the deceased respondents, there can be no question of abatement of the appeals against them. The only question is whether the appeal can proceed against them. Then after referring to the provisions of Order 1 Rule 9 of the CPC and explaining such provisions the Supreme Court pointed out that the test of determining whether the appeal was properly constituted and whether all the necessary parties for the decision of the controversy were before the Court or not had been laid down in diverse forms. It has further been pointed out that the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the Court; and (c) when the decree against the surviving respondents, if the appeal succeeds will be ineffective, that is to say. It could not be successfully executed.

13. Then after laving stress on the fact that the decree passed in favour of Labhu Ram and Nathu Ram was a joint decree, the Supreme Court observed as follows:—

“Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases the abatement of the appeal against the deceased respondents will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the Appellate Court. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final but also as a necessary corollary that the Appellate Court cannot in any way modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent the Appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.”

14. The next case referred to was that reported in AIR 1963 SC 553 Ram Samp v. Munshi. In this case an appeal from a preemption decree was preferred by the vendees and the appellants were live in number. They fell in two groups constituted respectively by the first and second appellants who were brothers and by appellants Nos. 3, 4 and 5. While the appeal was pending in the Supreme Court the first appellant died. No application was however made to bring on record the legal representatives of the deceased appellant. The sale of the property was not a sale of any separate item of property in favour of the deceased appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. It was held by the Supreme Court that as the decree was a joint one and a part of the decree had become final, by reason of abatement, the entire appeal must be held to have abated.

15. The other case of the Supreme Court which was referred to is that reported in AIR 1963 SC 1901 Rameswar Prosad v. Sham Behari Lal. In this case it is pointed out by the Supreme Court that the principle behind the provisions of Rule 4 of Order 41 of the CPC seems to be that any one of the plaintiffs or the defendants in filing an appeal as contemplated by the Rule represents all the other non-appealing plaintiffs or defendants, as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. But where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant. So if in respect of the deceased appellant the appeal has abated and the decree in favour of the respondents has become final against his legal representatives, they not having been brought on record in time, it will be against the scheme of the Code to hold that Order 41 Rule 4 empowers the Court to pass a decree in favour of the legal representatives of the deceased appellant on hearing an appeal by the surviving appellants even though the decree has become final. After dealing with the scope of the provisions of Order 41 Rule 4 and Order 22 Rule 9 of the CPC the Supreme Court observed at p. 1904 as follows:—

“We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41 Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under (3. 22 R. 3. See ILR 19 Pat 870 : AIR 1940 Pat 346 (FB)); Amin Chand v. Baldeo Sahai Ganga Sahai, ILR 15 Lah 667 : AIR 1934 Lah 206 : ILR (1953) 2 All 434 : AIR 1953 All 565 (FB); Vanak v. Ahmad Ali, AIR 1946 Lah 399 (FB); Pyarelal v. Sikharchand, ILR (1957) Madh Pra 21 : AIR 1957 Madh Pra 89; Reghu Sutar v. Nrusingha Nath, AIR 1959 Orissa 148; Venkata Ram Rao v. Narayana, AIR 1963 Andh Pra 168 (FB); Sonahar Ali v. Mukbal Ali, AIR 1956 Assam 164. The Bombay, Calcutta and Madras High Courts have taken a different view: See Shripad Balwant v. Nagu Kushaba, ILR (1943) Bom 143 : AIR 1943 Bom 301; Satulal Bhattacharjee v. Asireddi Sheikh, ILR 61 Cal 879 : AIR 1934 Cal 703; Soma Sundaram Chettiar v. Vaithilinga Mudaliar, ILR 40 Mad 846 : AIR 1918 Mad 794(2).”

16. The attention of this Court was also drawn to a decision of the Full Bench of this Court reported in AIR 1963 Cal 289 Santosh Kumar Mondal v. Nandalal Chakrapani. In this case a Full Bench of this Court consisting of Bachawat, D.N Sinha, P.N Mookerjee, G.K Mitter and C.N Laik TJ. has held that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants and all or several of the plaintiffs or defendants appeal against the decree, the appellate Court can, in view of the provisions of Order 41 Rule 4 proceed with the appeal and reverse the decree of the trial Court in spite of the omission to bring on the record the heirs of one of the appellants who dies during the pendency of the appeal.

17. In support of this proposition the Full Bench has relied on certain decisions which are referred to in the Supreme Court judgment in AIR 1963 SC 1901 to which I have just now made reference and are commented on by the Supreme Court as not laying down the correct law. So it appears that the decision of the Full Bench of Calcutta High Court has been impliedly overruled by the Supreme Court.

18. It has however been argued on behalf of the appellants that the provisions with regard to abatement as contained in Order 22 of the CPC do not and cannot apply to writ proceedings under Article 226 of the Constitution. The reasons adduced are firstly that the jurisdiction exercised by Court under Article 226 is a special jurisdiction or an extraordinary original jurisdiction and so the provisions of the Code of Civil Procedure are not in general applicable to such proceedings. In support of this proposition reliance is placed on a decision of the Full Bench of this High Court reported in 57 Cal WN 25 : AIR 1953 Cal 433 (FB) Budge-Budge Municipality v. Mungru Mia, and on a judgment delivered by me and reported in 61 Cal WN 694 at p. 708 : (AIR 1957 Cal 702 at p. 709) Bharat Board Mills Ltd. v. Regional Provident Fund Commr., where it has been incidentally observed that neither O. 27-A nor Section 141 of the CPC ??? applies proceeding under Article 226 of the Constitution. Reference was also made to the decision of the Supreme Court reported in AIR 1963 SC 946 State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, where it was held that a jurisdiction to issue writ under Article 226 was not an appellate or revisional jurisdiction, but it might be described as an extraordinary original jurisdiction. Attention of the Court was also invited to the decision of the Supreme Court reported in AIR 1961 SC 532 at p. 539, Khajoor Singh's case — paragraph 16 of the judgment to show that a proceeding under Article 226 could not be treated as a suit.

19. But it is to be pointed out that it is fairly well settled that an application under Article 226 of the Constitution is a proceeding in a Court of Civil jurisdiction and as such Section 141 of the CPC is attracted to such proceedings.

20. Section 141 is as follows:—

Section 141:— “Miscellaneous Proceedings—The procedure provided in this 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.’

21. In a decision of the Nagpur High Court reported in AIR 1956 Nag 27 Nimar Cotton Press v. Sales Tax Officer, Khandwa it has been observed that the proceedings under Article 226 are civil proceedings, and subject to the Rules made by that Court to regulate proceedings under that Article, are regulated by the Code of Civil Procedure (paragraph 13 at p. 31).

22. In a decision of the High Court of Andhra Pradesh reported in AIR 1956 Andh Pra 16 (sic) it has been held that an application under Article 226 of the Constitution of India is a proceeding in a Court of Civil Jurisdiction and the provisions of Order 1 and 2 can be invoked as far as they can be made applicable to the proceedings in a Writ application under Article 226. In this case it was pointed out that the decision of the Calcutta High Court in Manindranath v. Baranagore Municipality, AIR 1956 Cal 291, expressing the view that in a Writ proceeding the provisions of Order 1 of the CPC, could be followed, was in accord with the view expressed by the Andhra Pradesh High Court.

23. Similar views as to applicability of the Code have been expressed by the Allahabad High Court in the case of Dan Singh Bist v. Additional Collector, Bijnor reported in AIR 1960 All 152 at pp. 153 to 154 (paragraphs 6 to 9 of the judgment) and in the case of State of Rajasthan v. Ugam Singh, reported in AIR 1961 Raj 268 (paragraph 10 of the judgment).

24. It may also be pointed out in this connection that as early as in the case of. The justices of the Peace for the Town of Calcutta v. The Oriental Gas Co. Ltd., reported in (1872) 17 WR 364 at p. 371 it has been laid down by Sir Richard Couch that a proceeding for a Writ of Mandamus is a civil proceeding. The legal position therefore seems to be clear that Section 141 of the Code is directly attracted to an application under Article 226 of the Constitution and so such provisions of the Code of Civil Procedure as can be suitably applied to Writ proceedings are applicable to such proceedings.

25. It has been argued that there is no judicial decision which holds that Order 22 is applicable to Writ proceedings under Article 226 or the Constitution but there are decisions which have held that Order 1 Rule 1 of the Code applies to such proceedings. It has also been held that O. 1 R. 8 applies to Writ proceedings—see AIR 1953 Cal 289 paragraph 11 of the judgment, and that Order 1 Rule 10 of the Code and O. 19 of the Code are also applicable to such proceeding: see AIR 1954 Assam 161 and other cases.

26. So, from these decisions it is to be presumed that since there is no express decision holding that Order 22 is applicable, the said Order is not applicable to Writ proceedings; but the short answer to this argument is that the cases cited are merely illustrative and not exhaustive. Therefore, no conclusion is deducible from the absence of any decision with regard to applicability of Order, 22 of the Code that this Order 22 of the Code is not applicable to Writ proceedings. It is significant that there is no decision of any Court to show that substitution is not necessary in case of death of a party to a proceeding under Article 226 nor is there “any decision to the effect that an appeal preferred from the Order of a single Judge in a Writ proceeding does not abate by reason of the death of an appellant or a respondent who is a necessary party to the proceeding.

27. It has been argued that although this Court has framed Rules under Article 226 of the Constitution, no specific Rule has been framed applying Order 22 of the Code to Writ proceedings and so Order 22 is not applicable to Writ proceedings. But in answer to this contention our attention has been drawn to Rule 30 and particularly to Rule 43 of the Writ Rules framed by this Court which makes the Original Side Appeal Rules and the Appellate Side Appeal Rules applicable to appeals in Writ proceedings accordingly as they are instituted in the Original Side or Appellate Side of this Court. Mr. Chakravorty, the learned Government Pleader, has drawn the attention of the Court to Chapter II Rule 2, Sub-rule (5) of the Appellate Side Rules which empowers the Registrar of the Appellate Side of this Court to dispose of all matters relating to substitution of the heirs of parties provided no question of limitation arises, and also applications under Order 22 Rule 10 of the CPC to record an assignment, creation or devolution of an interest during the pendency of an appeal provided that such assignment, creation or devolution is not disputed. The learned Government Pleader has also invited the attention of the Court to Chapter V. Rule 25 of the Appellate Side Rules which provides that an application supported by an affidavit shall be filed for an order for amendment of the memorandum of an appeal consequent on the death of a party including a party whose heirs are already on the record.

28. So it is clear from these Appellate Side Rules that it is contemplated by these Rules that Order 22 of the Code normally applies to appeals and an amendment of the memorandum is necessary in the event of a death of a party to the appeal. So some indication is furnished by the Appellate Side Rules that the provisions of Order 22 of the Code are attracted to appeals and there is therefore good ground for supposing that Order 22 of the Code is attracted to Writ appeals. If we were to hold that Order 22 of the Code cannot apply to Writ proceedings, it would lead to an absurd situation. If a sole petitioner or all the petitioners in a Writ application or the sole appellant or all the appellants in a Writ appeal dies or die, can it be suggested that the Writ application or the Writ appeal can continue without bringing on records the legal representative of the deceased? The answer must obviously be in the negative because in such a case there will be no living person to continue the proceedings nor can any lawyer represent the persons who are dead and the Court also will be powerless to make any order affecting the deceased persons or their legal representatives. Even an order for costs cannot be made in such cases even if the Court is inclined to make any such order. So, to avoid this absurdity, it must be held that Order 22 of the Code is applicable to Writ proceedings.

29. Now once it is held that Order 22 of the Code is applicable to Writ proceedings, there is hardly any room for doubt that the conclusion which must follow in the facts and circumstances of this case is that upon the death of Krishnalal Sadhu the appellant No. 1, the appeal has abated as a whole. It is to be noted that all the appellants are the joint owners of the plots in question which are sought to be acquired and taken possession of. It is not alleged in the petition that the owners have any separate or defined shares in the properties. Each co-owner is interested in every inch of the joint properties having an undivided interest therein. The order of G.K Mitter, J. discharging the Rule has in effect adjudicated or determined that the acquisition of the properties is not illegal and the appellants had no right to withhold delivery of possession. Whether the adjudication is in the form of an order or decree is immaterial. In substance, the order of the learned trial Judge is an order adjudicating on the rights of the parties and if the order has become final so far as the deceased appellant is concerned by reason of the abatement of the appeal consequent upon the death of he said appellant, it appears to me that it is not competent for the Court to allow other appellants Nos. 2, 3 and 4 to proceed with the hearing of the appeal and make any order in the absence of the heirs and legal representatives of the deceased appellant. If the appeal is allowed at the instance of the appellants Nos. 2, 3 and 4, there will be conflict of decisions in the sense that so far as the deceased appellant is concerned, the order discharging the Rule will stand as having become final by abatement; but it will be set aside so far as appellants Nos. 2 to 1 are concerned. This will be clearly against the principle laid down by the Supreme Court in the decisions referred to by me in the earlier part of the judgment. In my opinion, the preliminary objection raised on behalf of the respondents should succeed and the entire appeal must be held to have abated by reason of the death of the appellant No. 1 whose heirs and legal representatives have not been brought on record within the time allowed by law.

30. Thus although the appeal must tail on the ground of abatement, as we have also heard the parties on merits, we propose to deal with the same and to record our findings on the points raised.

31. The first point urged is on the basis of ground No. 1 in the petition on which the Rule was issued. It is submitted that the notices issued on 21st June, 1957 being annexures C-1 and C-2 of the petition directing the appellants to deliver vacant possession of the plots in question air not in accordance with the law and so no action could be taken on the basis of such notices. It is argued that the steps which were purported to be taken under the provisions of Section 47 of the Land Acquisition Act were not warranted by the provisions of that section and the notices C-1 and C-2 are illegal.

32. Section 47 is as follows:—

Section 47 — “If the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police, and such Magistrate or Commissioner (as the case may be) shall enforce the surrender of the land to the Collector.”

33. So the requirements of the section are that if obstruction or resistance is offered to taking of possession of any land under this Act, the Collector can, if he is himself a Magistrate, enforce delivery of possession to himself; but if he is not a Magistrate, then he has to apply to a Magistrate for enforcing delivery of possession of the land except within the towns of Calcutta, Madras and Bombay where the Collector has to apply to the Commissioner of Police for enforcing surrender of the land and such Commissioner of Police will proceed to enforce delivery of possession to the Collector.

34. In the present case the affidavits make it clear that on the 15th May, 1957 the appellants were informed by Office Memo No. 1313 L.A that a Kanungo of that Office would go to take possession on the 27th May, 1957 and it appear that on that day a Kanungo went to take possession amicably, but he failed to obtain delivery of possession. As a result of that the Land Acquisition Officer, Hooghly, on the 27th May, 1957 wrote a letter to the Sub-Divisional Magistrate, Chinsurah Sadar, intimating that a further attempt made by Sri N.K Sen, a Kanungo of the Department, to take delivery of possession of the lands in question, had failed and so the only course open was to request the Sub-Divisional Magistrate to enforce delivery of possession and make over the same to the Land Acquisition Department of the Collector of Hooghly as provided in Section 47 of the Land Acquisition Act 1 of 1894. It also appears that along with this letter the report of the Kanungo showing that resistance was offered to the taking of possession was enclosed for the information of the Sub-Divisional Magistrate. On receiving this letter the Sub-Divisional Officer authorised Sri P.C Dutta, Sub-Deputy Magistrate, Second Class, Chinsurah, Hooghly, to enforce surrender of the disputed property and wrote a letter to Sri Dutta on the 18th Tune 1957 the relevant portions whereof are as follows:—

“The Special Land Acquisition Officer, Hooghly, has applied under Section 47 of the L.A Act 1 of 1894 to enforce possession of the land as description given below which has been acquired in Land Acquisition case No. V-II of 1950–1951 for Balika Bani Mandir Chinsurah.

As the Land Acquisition staff has been impeded in taking the possession, so you are requested and hereby authorised to take possession as a Magistrate on my behalf.”

35. Pursuant to this authority contained in this letter Sri P.C Dutta on the 21-6-1957 issued the two impugned notices C-1 and C-2 to the appellants intimating that possession would be taken on the 26th June, 1957 and on the 26th June, 1957 the Magistrate along with the Land Acquisition Officer Parimal Chandra Banerjee and a Kanungo went to take possession of the land but failed to enforce delivery of possession on account of obstructions offered on behalf of the owners of the land, that is, the appellants.

36. It has been argued that the Land Acquisition Officer who made the application under Section 47 of the Act on the 27th May, 1957 had no power to do so but only a Collector had such a power under Section 47 of the Act. But it is to be pointed out that neither in the petition nor in any of the affidavits the authority of the Land Acquisition Officer to write the letter dated 27th May, 1957 has been disputed or challenged. This question of authorisation is a question of fact and cannot be allowed to be disputed before us at the hearing of the appeal.

37. Section 3(c) of the Land Acquisition Act defines Collector as follows:—

Section 3(c) — “The expression ‘Collector’ means the Collector of a district and includes a Deputy Commissioner and any Officer specially appointed by the appropriate Government to perform the function of a Collector under this Act.”

38. So it may very well be that the Land Acquisition officer is an Officer specially appointed by the Government to perform the functions of a Collector and so he had the authority to write the letter dated 27th May, 1957. But apart from this, the letter of the 27th May, 1957 itself shows that it is purported to be written on behalf of the Collector. At the top of this letter appear words “from the Collector of Hooghly” and above that there is a heading “Office of the Collector of Hooghly, Land Acquisition Department”. So it is clear that this letter was written on behalf of the Collector of Hooghly. The letter of the 18th June, 1957 written by the Sub-Divisional Officer to Sri P.C Dutta, Sub-Deputy Magistrate, Second Class, Chinsurah, shows that it was as a result of the application made by the letter dated 27th May, 1957 written by the Special Land Acquisition Officer, Hooghly who had applied under Section 47 of the Act to enforce possession of the land, that the Sub-Divisional Officer who was undoubtedly a Magistrate had authorised the Sub-Deputy Magistrate, Second Class, to take possession as a Magistrate on behalf of the Sub-Divisional Officer. So this letter authorised and deputed another Magistrate to enforce surrender of the land on behalf of the Sub-Divisional Officer. It is true that the person deputed or authorised was a Second Class Magistrate, but there is nothing in Section 47 of the Act to show that a Second Class Magistrate is not a Magistrate within the meaning of Section 47 of the Act. Our attention was drawn to the relevant provisions of the Criminal Procedure Code which set out the different classifications of the Magistrates appointed by the Government. But it appears to us that there is no substance in the contention that a Second Class Magistrate duly authorised has no power to enforce surrender of a land as contemplated in Section 47 of the Act on behalf of the Sub-Divisional Officer to whom the original application under Section 47 had been made by the Office of the Collector of Hooghly. Section 47 also does not enjoin that the Magistrate before whom the application under Section 47 of the Act is actually made must be personally present to take or enforce possession. To put such construction on the section will be to impose or the Magistrate an obligation about which the section is silent and it will be unreasonale to hold that a Magistrate to whom an application is made under Section 47 of the Act in discharging his duties under that section cannot take the assistance of subordinate Officers specially authorised by him to take possession on his behalf. Section 47 of the Act also does not require issuing of any notice as a condition precedent to enforcement of delivery of possession or surrender of the land. The notices sect out in annexures C-1 and C-2 were in the nature of intimation in writing given to the owners of the date of enforcing of delivery of possession, although no such intimation was required to be given in writing by the provisions of the Statute. An argument was advanced that these notices C-1 and C-2 were not served on the appellants in the manner required under Section 45 of the Land Acquisition Act and so no action could be taken on the basis of these two notices. But as pointed out already, the annexures C-1 and C-2 are notices with are not required to be given under this Act and as Section 45 has application only in case of notices which are enjoined under the provisions of the Land Acquisition Act, the argument advanced on the basis of Section 45 must be held to be of no force and it must be rejected. It appears to us that there is no substance in the first point of the appellants and this contention must therefore fail.

39. The next point which is argued on the basis of ground No. 3 set out in paragraph 37 of the petition and upon which the Rule was issued appears to us to be equally without any substance. The argument advanced is that the Institution Balika Bani Bidyalaya, Chinsurah was not a Company within the meaning of the Land Acquisition Act 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. It was said that the acquisition for a certain Institution which was not a Company was really for a private purpose, that is, for the benefit of the Institution and this is not warranted by the provisions of the Land Acquisition Act.

40. Now it is an admitted fact that this Chinsurali Balika Bani Mandir H.E School is not a Company within the meaning of the Land Acquisition Act. The definition of the Company is given in Section 3(e) of the Land Acquisition Act and it is clear that the School does not come within the ambit of this definition. But this argument of the appellants overlooks the fact that both in the notification under Section 4 and in the declaration under Section 6 it is made clear that the land is required to be taken by the Government partly at the public expense and partly at the expense of Chinsurah Balika Bani Mandir and the acquisition was being made for a playground and a hostel for the students and teachers of the Institution. So as the acquisition was being made for a public purpose, it is immaterial whether the School Balika Bani Mandir, Chinsurah, was a Company or not. An analysis of the relevant provisions of the Land Acquisition Act makes it abundantly clear that under this Act an acquisition can be made (a) for a public purpose in which case the cost of acquisition for payment of compensation has to be paid wholly or partly out of the public revenues or some funds controlled or managed by local authority and (b) for a Company in which case the compensation has to be paid by the Company and in the case of acquisition for a Company the provisions of Part VII of the Land Acquisition Act have to be complied with, in other words, Sections 39 to 41 of the Land Acquisition Act which lay down conditions precedent to the application of the machinery of the and Acquisition Act have to be complied with in the case of an acquisition meant for a Company. The proviso to Section 6 also makes it clear that the declaration under Section 6 for the acquisition of a Company cannot be made unless the compensation to be awarded for the property is to be paid by the Company and the opening words or Section 6(1) “subject to the provisions of Part VII of the Act” also make it clear that the provisions contained in Part VII have to be complied before a declaration under Section 6 of the Act can be made in respect of acquisition of a Company simpliciter ftinay also be stated in this connection that the Supreme Court has laid down in the case of Jhandulal v. State of Punjab, AIR 1961 SC 343 that where an acquisition is made for a Company for a public purpose and a portion of the cost of the acquisition is to come out of the public funds and the balance out of the funds of the Company, it is not essential to comply with the requirements of Part VII of the Land Acquisition Act because in such a case the acquisition is not for a Company simpliciter but also for a public purpose and the essential condition for acquisition for a public purpose is that the cost of the acquisition should be borne wholly or in part out of the public funds.

41. Now there is no doubt that in the present case the acquisition was being made for a public purpose as contemplated by the Land Acquisition Act. Section 3(f) contains an inclusive definition of the expression “public purpose” and as pointed out by the Supreme Court in the case of Somawanti v. State of Punjab, AIR 1963 SC 151 and other decisions of the Supreme Court, the definition contained in the Land Acquisition Act not being a compendious one is not useful in ascertaining the ambit of that expression. But broadly speaking the expression would include a purpose in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. Acquisition for providing a playground and a hostel for an educational institution certainly answers the description of a public purpose. The acquisition is made for the benefit of the Institution, or in other words, for the benefit of a section of the public and as such the general interest of the community is served by such an acquisition.

42. It has also been argued that as only a sum of Rs. 100 is to come out of the public funds, the acquisition cannot be said to be for a public purpose. But in the case of AIR 1963 SC 151 to which reference has already been made it has been observed that it is not essential that the contribution by the State towards the cost of the acquisition must have to be a substantial part of the value of the property sought to be acquired although according to the supreme Court a token contribution by the State towards the cost of acquisition may not be a sufficient compliance with the Statute in each and every case and the question whether the contribution meets the requirements of the law would depend upon the facts of every case. It was held in that case before the Supreme Court that a contribution of hundred rupees by the Government towards the cost of acquisition of the land which was worth Rs. 45,000 satisfied the requirement of the Statute and the declaration under Section 6 could not therefore be challenged as a colourable exercise of the power. The question of mala fide or colourable exercise of the power was raised in the application under Article 226 of the Constitution which came up before me sitting singly and was disposed of by me on the 20th July, 1953 by an Order which discharged the Rule and against this Order an appeal was preferred as already stated and the same was dismissed by a Division Bench of this Court on the 9th February, 1956. So the decision negativing the charge of mala fide became final. So no question can arise of attacking this declaration under Section 6 again on the ground of there being any colourable exercise of any power I by the Government in respect of the acquisition in question.

43. In a Division Bench decision of this I Court reported in (1963) 67 Cal WN 647 Amarendranath Nath v. State of West Bengal it has also been pointed out that merely because the amount paid towards the cost of acquisition out of the public exchequer is small or insignificant, does not show, that the acquisition is not for a public purpose but for a private purpose. For these reasons it appears to us that the contention of the appellants based on ground No. 8 has also no force and it must be rejected. The learned trial Judge has in course of his judgment in dealing with ground No. 3 observed that—

“So far as challenge to the notification under Section 4 and declaration under Section 6 are concerned, in my opinion, it is not open to the petitioners to take that point after their failure in the first application. The principle of constructive res judicata must apply to application under Article 226 of the Constitution”.

44. The learned Advocate for the appellants Mr. Dutt challenged this finding of the learned trial Judge and argued before us that there is no question of constructive res judicata in the facts and circumstances of the case and so the learned Judge's finding on this point is erroneous and attention of the Court was invited to the decision of the Supreme Court reported in (1963) 2 SCA 145 : (AIR 1964 SC 1013) Amalgamated Coal Fields Ltd. v. Janapada Sabha Chindwara decision of the Supreme Court dated 24th October, 1964 in Debi Mohta's case which is not yet reported.

45. The learned Government Pleader drew our attention to the Supreme Court case reported in AIR 1961 SC 1457 Daryao v. State of Uttar Pradesh and also a Bench decision of the Calcutta High Court reported in AIR 1963 Cal 6 Makhanlal Roy v. State of West Bengal. But in view of our findings on the other points raised, it is not necessary to express any opinion on this point and we refrain from doing so in the present case.

46. For the reasons given above, this appeal must fail and it is accordingly dismissed with costs to the respondents assessed at five Gold Mohurs for each set of appearing respondents.

47. Let the operation of this Order remain in abeyance for six weeks from date, as prayed for.

B.C Mitra, J.:— I agree.

EJ/D.H.Z

48. Appeal dismissed.

Krishnalal Sadhu And Others v. State Of West Bengal And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Krishnalal Sadhu And Others v. State Of West Bengal And Others

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