Iswar Mahadev v. STATE OF WEST BENGAL — 1961 DIGILAW 198 (CAL)

JUDGMENT 1. The West Bengal Land Development and Planning Act, 1948 (hereinafter referred to as the Act), which now finds a position of immunity in the Ninth Schedule of the Constitution still affords grounds for criticism of procedural provisions for land acquisition under the Act. Section 4 of the Act, providing for declaration of notified area, is couched in the following language:- Sec. 4 (1) "the State Government may, by notification in the Official Gazette, declare any area specified in the notification to be a notified area if it is satisfied that any land in such area is needed or is likely to be needed for any public purpose and the Collected shall cause public notice of the substance of such notification to be given at convenient places in the locality in such manner as he may think fit. " 2. At the point of time, when a notification under section 4 is published, the mind of the Government is in an exploratory stage, not being sure whether the notified area will serve the public purpose for which the acquisition is intended. It is only when the Government is satisfied that the land will serve the purpose, after making the enquiries envisaged in section 4 (2) of the Act and after hearing objections from persons interested in any land within the notified area under section A, that it makes a declaration for acquisition. Section 4 (1) of the Act provides for a two-fold manner of publication of the notification, namely, publication in the Official Gazelle and public notice of the substance of such notification at convenient places in the locality in such manner as the Collector may think fit. There is a purpose behind the two-fold manner of publication. The publication in the Official Gazette is certainly a relevant fact, under section 37 of the Evidence Act, when a court is to form an opinion as to the existence of the notification. But such publication may not attract sufficient public attention and all persons interested in any land within the notified area may not become apprised of the notification by mere publication of the notification in the Official Gazette. That is the reason why another method of publication of the substance of the notification is provided for in section 4. But such publication may not attract sufficient public attention and all persons interested in any land within the notified area may not become apprised of the notification by mere publication of the notification in the Official Gazette. That is the reason why another method of publication of the substance of the notification is provided for in section 4. This second method of publication is likely to attract larger public attention, so as to enable interested persons to object to the acquisition of lands in which they are interested, if they like. Since an objection under section 4a of the Act is to be made within thirty days from the date of issue of the notification, it is of utmost necessity that person interested in any land within the notified area should be alerted by sufficient publication of the notification That must be the reason why the Act provides for a two-fold manner of publication of the notification. Otherwise, the second publication becomes with cut any object, purpose or utility. That being, in my view, the object of the two-fold publication, it is proper, if possible, to cause public notice of the substance of the notification to be given immediately after the publication of the notification in the Official Gazette or, in any event, sufficiently ahead of the time fixed, under section 4a of the Act, for the filing of objections to the proposed acquisitions. In the instant case, there was a notification under section 4 of the Act, published in the Calcutta Gazette on April 11, 1957 by which certain plots of land belonging to the petitioners were notified for acquisition. The material portion of the notification is set cut below:- "24-Parganas. No. 5794l. Dev.-28th March, 1957. Whereas it appears to the Governor that land is likely to be needed for a public purpose- viz., for the settlement of the immigrants-who have migrated into the State of West Bengal on account of circumstances beyond their control in the village of Kalidaha, jurisdiction list No. 23, police station Dum Dum, district 24-Parganas, it is hereby notified that for the above purpose a piece of land comprising cadastral survey plot Nos. 205 to 209, 211, 267, 270 to 296, 561 to 567 and parts of cadastral survey plot Nos. 212 284, 285, 559, 560, 569, 570, 1925 and 2195 and measuring more or less, 15. 205 to 209, 211, 267, 270 to 296, 561 to 567 and parts of cadastral survey plot Nos. 212 284, 285, 559, 560, 569, 570, 1925 and 2195 and measuring more or less, 15. 7670 acres, is likely to be required within the aforesaid village of Kalidaha. This notification is made, under the provisions of section 4 of the West Bengal Land Development and Planning Act, 1948 (West Bengal Act XXI of 1948), to all whom it may concern. " 3. Thereafter, in the Calcutta Gazette, February 9, 1958, there was another notification published by which so much of the earlier notification as related to parts of C. S. plot Nos. 559 and 560 measuring 0. 1362 acres, was cancelled. Further in the same Gazette there was an erratum notification published, by which C. S. Plot Nos. 284 and 285 (included in C. S. Plot Nos. 270 to 296) were deleted out of the first notification. Also in the same Gazette was published a declaration under section 6 of the Act which was to the following effect:- "24-Parganas.- No. 1894l-Dev.-4th February, 1958-Whereas it appears to the Governor that land is needed for a public purpose, namely, for the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their control in the village of Kalidaha, jurisdiction list No. 23, Police-Station Dum Dum, District 24-Parganas, it is hereby declared that for the above purpose a piece of land comprising cadastral survey plot Nos. 205 to 209, 267, 270 to 283, 286 to 296, 561 to 567 and parts of cadastral survey plot Nos. 212, 284, 285, 569, 570, 1825 and 2195 and measuring more or less, 15. 6308 acres is required within the aforesaid village of Kalidaha. This declaration is made under the provisions of section 6 of the West Bengal Land Development and Planning Act, 1948. " 4. It is not disputed that public notice of the said notification was not given until the dates between May 16, 1957 to May 21, 1957, that is to say well beyond thirty days of the date of the issue of the notification in the Calcutta Gazette. By another notice [annexure X (l) to the affidavit-in-opposition on behalf of respondents Nos. It is not disputed that public notice of the said notification was not given until the dates between May 16, 1957 to May 21, 1957, that is to say well beyond thirty days of the date of the issue of the notification in the Calcutta Gazette. By another notice [annexure X (l) to the affidavit-in-opposition on behalf of respondents Nos. 1-4], dated May 16, 1957, the respondent Land Acquisition Collector called upon persons interested in any land within the notified area, to prefer their objections to the acquisition by June 26, 1957. The petitioners allege that they are the owners of a garden house known, as "lal-bagan", being premises No. 93 Sett Bagan Road, approximately measuring about 60 bighas and the notified area formed part of the same. Over portions of the land of the garden house a number of squatters forcibly trespassed sometime in the year 1949. For their eviction the petitioners filed a representative suit against the squatters aforementioned, being Title Suit No. 33 of 1956 of the Court of the Second Subordinate Judge, Alipore. The said suit was decided an June 15, 1957 and the petitioners obtained a decree for khas possession against the said squatters. The petitioners alleged that the above-mentioned notification and declaration were made with the object of helping the squatters in their wrongful occupation and defeating the decree obtained by the petitioners against them. 5. Being thus aggrieved by the aforementioned notification and declaration, the petitioners moved this Court, under Article 226 of the Constitution, praying for a Writ in the nature of mandamus calling upon the respondents to cancel the notification and the declaration, alternatively, for a writ in the nature of certiorari for quashing the same. 6. Mr. Prafulla Kumar Roy, learned Advocate for the petitioners argued two points in support of this Rule. He contended, in the first place, that the original notification under section 4 of the Act underwent considerable modifications by reason of the cancellation notification and the erratum notification, hereinbefore referred to. The notification, therefore, must be deemed to have been published in its final form, when the cancellation notification and the erratum notification were published in the Calcutta Gazette, on February 4, 1958. The declaration, under section 6 of the Act, was published on the same date and in the same Gazette. The notification, therefore, must be deemed to have been published in its final form, when the cancellation notification and the erratum notification were published in the Calcutta Gazette, on February 4, 1958. The declaration, under section 6 of the Act, was published on the same date and in the same Gazette. By reason of the simultaneous publication of the notification and the declaration, little time was left to the petitioners to make their objections, under section 4a of the Act. The simultaneous publication of the notification and the declaration, being opposed to the scheme of the Act, Mr. Roy contained that the declaration deserved to be quashed and the respondents restrained from giving effect to the declaration. He argued, in the next place, that the public notice of the substance of the notification was not given until after the expiry of one month of the date of issue of the notification in the Calcutta Gazette. The belated publication of the notice, Mr. Roy contended, made it impossible for the petitioners to prefer any objection under section 4a of the Act. He also contended that the public notice inviting objections [annexure X (l) to the affidavit-in-opposition on behalf of the respondents Nos. 1 to 4] showed little respect for the statutory provisions and gave about 40 days time to prefer objections under section 4a of the Act. The said notice, Mr. Roy contended, was not a notice in conformity with the Act and the objections thereby invited could not be deemed to be the statutory objections under section 4a. 7. The first branch of the argument of Mr. Roy is not of much substance. The erratum notification had to be published because of a self-evident error in the original notification. Under that notification C. S. Plot Nos. 270 to 296 were being proposed to be acquired in their entirety. At the same time C. S. plots Nos. 284 and 285 were being proposed to be partially acquired. Since the whole will include the part, the proposal for acquisition of plots No. 284 and 285 in their entirety was redundant when the part only of those two plots was proposed to be acquired. Then again, the publication of the cancellation notification became necessary because the land acquisition authority realised that C. S. plots Nos. Since the whole will include the part, the proposal for acquisition of plots No. 284 and 285 in their entirety was redundant when the part only of those two plots was proposed to be acquired. Then again, the publication of the cancellation notification became necessary because the land acquisition authority realised that C. S. plots Nos. 559 and 560 were acquired land belonging to the railway administration and should not be again acquired for resettlement purposes. 8. I need mention here that there is considerable difference of opinion between the petitioners and the land acquisition authorities about the ownership of C. S. Plots Nos. 559 and 560. In paragraph 4 of the further affidavit filed on behalf of the said Land Acquisition Collector, 24-Parganas, affirmed on September 19, 1961 there is an extract from the report under section 4a (2) of the Act, which is as follows:- "in course of my enquiry it transpired that parts of plots Nos. 559 and 560 involving a total area of. 1362 acres proposed for acquisition was railway acquired land in possession of Eastern Railways. This area cannot be acquired again and hence deducted from the area proposed for acquisition leaving a balance of 15. 6308 acres. " In paragraph 5 of the affidavit-in-reply on behalf of the petitioners affirmed on September 22, 1961, the petitioners, however, state as follows:- "that with reference to paragraph 4 of the said further affidavit I categorically state that plot Nos. 559 and 560 are in possession of your petitioners and they are included within the boundaries of the garden land of your petitioners. I add to state that there are no material records to show that the aforesaid two plots were already acquired. " 9. There being no material on the record in support of the version that C. S. Plot Nos. 559 and 560 were railway acquired lands, I decided to examine verbally the deponent of the further affidavit, Mr. Shyamapada Sen. He appeared before me on September 29, 1961 and gave evidence. In answer to questions Nos. 4 and 5, he confessed that he had not in his possession records of the proceeding showing acquisition of the two plots by the railway. He, however, relied on C. S. Khatian no. 719 (Ex. A) which showed that the Eastern Bengal Railway was the 'malik' of the two plots. In answer to questions Nos. 4 and 5, he confessed that he had not in his possession records of the proceeding showing acquisition of the two plots by the railway. He, however, relied on C. S. Khatian no. 719 (Ex. A) which showed that the Eastern Bengal Railway was the 'malik' of the two plots. The settlement Khatian does not affirmatively show that the two plots had been at any stage acquired by the railway but that may have been so. In any event, the C. S. Khatian is prima facie evidence of the fact that the two plots are in possession of the railway administration, whether by acquisition on otherwise. I need not decide the ownership of the two plots of land finally in the present proceeding. Suffice it for the present purpose to hold that the petitioners have failed to show that they are interested in the said plots of land and that it was not necessary for them to be bothered with the cancellation of the acquisition of the said two plots. 10. In my opinion, the correction of an apparent error in the original notification and the cancellation of acquisition of parts of C. S plots Nos. 559 and 560 in all measuring. 1362 acres (out of a total of 15. 7670 acres notified for acquisition) did not substantially change the character of the notification. Inasmuch as the erratum notification and the cancellation notification did not introduce any major change in the original notification, the petitioners were not in any way prejudiced by the publication of the declaration under section 6 of the Act on the same day that the erratum notification and the cancellation notification were published in the Calcutta Gazette. For the reason aforesaid I do not find much substance in the first branch of the argument advanced on behalf of the petitioners. The second branch of the argument, however, requires more serious consideration. I have already expressed the view that publication of the substance of the notification under section 4 of the Act should be made immediately after the publication thereof in the Calcutta Gazette or in any event sufficiently ahead of time fixed, under section 4a of the Act, for making objections to the proposed acquisition. Otherwise the publication of the substance of the notification becomes useless, purposeless or without any utility. Otherwise the publication of the substance of the notification becomes useless, purposeless or without any utility. I have also here to before noticed that the notification was published in the Calcutta. Gazette on April 11, 1957 and the publication of the substance of the notification was not made until May 16, 1957, several days beyond one month of its publication in the Calcutta Gazette. 11. Mr. Shyama Charan Sen, the Additional Land Acquisition Collector, who deposed before me, tried to justify the belated publication of the substance of the notification by stating that the time for filing of objection under section 4a of the Act began to run from the date of service of the public notice of the substance of the notification and not from the date of the issue of the notification in the Calcutta Gazette (Q 32. He may not be quite correct in his statement. The language of Section 4a (1) is:- "any person interested in any land within a notified area may, within thirty days from the date of issue of the notification specifying the area to be a notified area, object to the acquisition of the land in which he is interested. " 12. The date of the issue of the notification is not the same thing as the date of the public notice of the substance of such notification. Therefore, in my reading of section 4a, the starting point of the time for filing objections is not the later date of publication of the substance of the notification but the earlier date of its issue or publication in the Calcutta Gazette. That being so, the publication of the substance of the notification long after thirty days of the publication thereof in the Calcutta Gazette did not alert the petitioners in such manner that they could take time by the forelock and make their objections to the proposed acquisition within the time fixed under section 4a of the Act. It was contended on behalf of the State Government that the belated publication of the substance of the notification did not in any way prejudice the petitioners because by a notice the Collector fixed June 26, 1957 as the last date for filing objection (Q 46), which was more than one month from the date of publication of the substance of the notification. It was certainly generous of the Collector to allow more time to the petitioners to file objections than what the statute itself contemplated. But the question for my consideration is whether the Collector could do that. The answer to the question would depend on whether the time limit fixed by section 4a of the Act is obligatory and mandatory or merely directory and permissive. Section 4a (1) of the Act uses the words "may within thirty days from the date of issue of the notification object " In Maxwell on The Interpretation of Statutes (Ninth Edition, pages 249-50) the meaning of the word 'may' is stated to be as follows: "that from the nature of the English language the word, 'may' can never mean 'must', that it is only potential, and when it is employed there is another question to be decided, viz., whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary. But when the power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative. Accordingly when a statute enacts that a candidate at an election 'may' be present at the polling place or that a clergyman accused of an ecclesiastical offence 'may' attend the proceedings of the commission appointed to inquire into the accusation, or that a company may construct a railway, or that a plaintiff 'may' sue in one action for injury done to his wife as well as himself the word, may, is plainly permissive only, and a mere privilege or license is conferred which he may exercise or not at pleasure. But an enactment that church wardens 'may' make a rate for the reimbursement of constables or the Chancellor 'may' issue a commission in a case of bankruptcy or one conferring power on the courts to direct that a person entitled to costs should recover them, is no mere permission to do such acts with a corresponding liberty to abstain from doing them. A duty is at the same time cast upon the person empowered. In all such cases the intent of the Legislature, which is the test, is not to grant a mere discretion, but to impose a positive and absolute duty. " 13. A duty is at the same time cast upon the person empowered. In all such cases the intent of the Legislature, which is the test, is not to grant a mere discretion, but to impose a positive and absolute duty. " 13. The legal position being such as stated above, Section 4a (1) of the Act merely grants a privilege to persons interested in any land within the notified area to object to the proposal for acquisition within thirty days of the publication of the notification it, the Gazette. The meaning of the word, "may" in the Section is merely permissive. Although that is so, it is just proper that fullest opportunity should be given to such persons to object within the prescribed time and that they should be alerted by both the: forms of publication of the notification as contemplated by Section 4 of the Act, before the time fixed for objections expire. Nevertheless, if the authorities fail to do that, that is to say, do not publish the substance of the notification immediately after or sufficiently ahead of the expiry of the time fixed to file objections, the effect; is not to make the acquisition proceedings nugatory or void. The authorities may make up the inconvenience caused to intending objectors on account of the belated publication of the substance of the notification, by giving them sufficient time to file objections. There is nothing in the Act to prevent the authorities from so doing. This is exactly what they did in the instant case. Therefore, although the petitioners may not have been aware of the publication of the notification in the calcutta Gazette and therefore, unable to object to the proposal for acquisition within the prescribed time, yet then they had sufficient time to object after the publication of the substance of the notification. I, therefore, find no real substance in the second grievance made on behalf of the petitioners. Both the arguments advanced by mr. Roy, therefore, fail. This Rule is discharged without any order as to costs.