Balaram Mukherjee v. State of West Bengal — 1979 DIGILAW 278 (CAL)

JUDGMENT Chittatosh Mookerjee, J: The Petitioner, Balaram Mukherjee, is a lunatic represented by his wife Smt. Chinmoyee Mukherjee, who was appointed as his legal guardian in Act IV, Case No 56 of 1959 of the Court of the District Judge, 24 Parganas. The petitioner claims to be the joint owner of Plot Nos. 412, 415, 418, 2400 to 2404 and 422 mouza Kantalpara, district 24 Parganas. 2. On 12th September, 1974 the Government of West Bengal issued Notification No. 15126 LA/4M 4/74 dated 1st August, 1974 under S. 4 of the Land Acquisition Act stating that Cadestral Plot Nos. 412 to 416, 497, 2400 to 2407 measuring more or less 4717 hectares were likely to be needed for a public purpose namely, for provision of a hawkers corner in the village of kantalpara P.S. Naihati Municipality. The said proposed acquisition was to be at the expenses of the Naihati Municipality. Thereafter, the Government of West Bengal issued Notification No. 19054-LA(II)-4M-4/74 dated 9th November, 1976 declaring that the aforesaid plots of land measuring 4717 hectares of land were needed for a public purpose namely, for provision of a hawkers corner at Kantalpara at the expenses of the Naihati Municipality. On 11th April, 1978 the present writ petition was made ready and thereafter it was moved and this Rule was issued. This Civil Rule was previously placed before B.C. Basak J. for hearing. The learned Single Judge has been pleased to refer this Rule to the Division Bench for hearing. We have heard the learned advocates for the parties at length. 3. Mr. Chatterjee, appearing on behalf of the State, and Mr. Sudhis Dasgupta, appearing on behalf of the respondent have raised a preliminary objection to the maintainability of this Rule. It is now undisputed tint on 29th March, 1978 the petitioner had filed an application under S. 18 of the Land Acquisition Act for reference to the Land Acquisition Judge for determination of the amount of compensation payable for the acquired plots in which the petitioner claims interest. The petitioner in his writ petition, however, did not disclose that he had applied to the Collector under S. 18 of the Land Acquisition Act for making a reference to the Court the question of enhancement of compensation for the acquired plots in which he claims to be interested. According to Mr. The petitioner in his writ petition, however, did not disclose that he had applied to the Collector under S. 18 of the Land Acquisition Act for making a reference to the Court the question of enhancement of compensation for the acquired plots in which he claims to be interested. According to Mr. Chatterjee, by filing the said reference petition, the petitioner had accepted the impugned acquisition proceeding as valid and legal. Having thus elected to receive compensation, the petitioner had become estopped from filing the present writ petition challenging acquisition of the plots in question. 4. There arc two aspects of this preliminary point in the first place, whether or not the non-disclosure of the fact of the petitioner filing it reference application under S. 18 of the Act in his writ petition amounts to suppression of material facts and whether on this ground the Court may refuse to exercise its discretionary jurisdiction under Article 226. The second aspect of the preliminary point is whether or not the petitioner, who has filed a reference petition is estopped from simultaneously maintaining this writ petition and whether the doctrine of election of remedies would apply in the facts of the present case. 5. The learned advocates for the respondents have relied upon the decision of B. N. Banerjee J. in Tirthalal De v. The State of West Bengal & Ors. 66 CWN 115. Banerjee J. in Tirthalal De's case (supra), found on merits against the petitioner of the said case who had challenged a land acquisition proceeding in the penultimate paragraph of his judgment Banerjee J. give the following additional reasons for discharging the Rule. “Moreover, the petitioner has already made an application for reference claiming increased compensation for his interest in the acquired land. He says he has done so without prejudice. I do not know how the can be permitted to challenge the acquisition itself and at the same time claim increased compensation. That is an additional reason why the petitioner is not entitled to relief under Article 226 of the Constitution”. The learned Single Judge, however, did not give elaborate reasons and did not cite authorities. Our attention has been also drawn to the decision of Arun Kumar Mukherjea and Sabyasachi Mukherji JJ. in Sm Hemlata Basu v. State of West Bengal & Ors. 75 CWN 94. The learned Single Judge, however, did not give elaborate reasons and did not cite authorities. Our attention has been also drawn to the decision of Arun Kumar Mukherjea and Sabyasachi Mukherji JJ. in Sm Hemlata Basu v. State of West Bengal & Ors. 75 CWN 94. The said appeal under clause 15 of the Letters patent was preferred against an order of B. C. Mitra J. discharging a Civil Rule on the ground that the petitioner had filed a reference petition under S. 18 of the Land Acquisition Act and as such he was not entitled to challenge the Land Acquisition proceeding under Article 226 of the Constitution. The Division Bench in Sm. Hemlata Basu’s case (supra), reversed the said decision of the learned single Judge. According to the Division Bench, the correct position seemed to b that nobody should be permitted to take an inconsistent position. It was further held that the petitioner in the said not take an inconsistent position because there was no inconsistency in the position of a person who says that the proceeding under the Land Acquisition Act is invalid in law, but if the same are held to be valid, he is entitled to obtain lawful compensation under the said Act. In Sm. Hemlata Basu's case (supra), the petitioner had disclosed the full facts in his writ petition. There was no undue delay in filing the writ petition. The Division Bench further held that the reference had been filed so to prevent the claim becoming barred by limitation. The petitioner did not accept any money. In that view of the matter, the Division Bench held that it was not possible to say that the petitioner had unequivocally expressed an intention to adopt the Land Acquisition proceeding. Therefore, he was not disentitled from obtaining relief under Article 226 of the Constitution. The Division Bench in Sm. Hemlata Basu's case (supra), adverted to the question of election of remedies but declined to hold that the Supreme Court decision in Raja Anand Brahmashah v. The State of Uttar Pradesh & Ors. AIR 1967 SC 1081 , was an authority for the proposition that no question of election was involved when a person filed an application under S. 18 of the Land Acquisition Act and thereafter instituted a writ proceeding challenging the same land acquisition proceeding. 6. In our view, the Division Bench decision in Sm. AIR 1967 SC 1081 , was an authority for the proposition that no question of election was involved when a person filed an application under S. 18 of the Land Acquisition Act and thereafter instituted a writ proceeding challenging the same land acquisition proceeding. 6. In our view, the Division Bench decision in Sm. Hemlata Basu's case (supra), is applicable to the present case. The Writ petition was filed within a short time from the date of the publication of the impug'1ed declaration under S. 6 of the Land Acquisition Act. There was no undue delay on the pad of the petitioner. A reference petition under S. 18 is required to be filed within the prescribed time. We find no inconsistency in the stand taken by the petitioner that the land acquisition proceeding is illegal and in case the same is found to be legal, the respondents are bound to pay compensation in accordance with law. Payment of such compensation for acquired plots is a statutory obligation. Therefore, when a person makes an application for a reference under S. 18 but does not withdraw or receive any pare of the compensation awarded either by the Collector or by the Court, there could be no question of waiving his objection, if any, to the validity of such land acquisition proceeding. In fact, the Land Acquisition Act itself contemplates that the persons interested may file objection to the acquisition of land pray for enquiry and report in accordance with S. 5A. A person who makes such objection does not forfeit his right to receive compensation at the subsequent stage of the and acquisition proceeding. Therefore, there is no reason to hold that after a declaration under S. 6 of the Act is made, persons interested can no longer object to the acquisition of the land by filing a writ petition. The decision of Sinha CJ and A. K. Mukherjea J. in Tincari Das v. L. A. Collector, Alipore & Ors., 70 CWN 1100, was distinguished by the later Division Bench decision in Sm. Hemlata Basu's case (supra) Incidentally A. K. Mukherjea J. was a party to both the reported decision. In Tincori Das's case (supra), the petitioner sought to explain three years delay by relying upon the steps taken under S. 18 of the Act before the Land Acquisition Authorities. Hemlata Basu's case (supra) Incidentally A. K. Mukherjea J. was a party to both the reported decision. In Tincori Das's case (supra), the petitioner sought to explain three years delay by relying upon the steps taken under S. 18 of the Act before the Land Acquisition Authorities. In view of these facts, the Division Bench in Tineori Das's case (supra), held, that having adopted land acquisition proceeding and having asked for compensation, a person cannot be allowed to obtain relief under an equitable jurisdiction. The petitioner is required to disclose all facts which are material for decision by the writ court. Omission to state a fact, which, will not affect the decision by the writ court, cannot be considered as a material suppression. Such non-disclosure of a fact which is not relevant for disposing of a writ application is not fatal. 7. In the instant case, the petitioner did not withdraw any part of the compensation awarded by the Collector. He had filed a reference petition which would have been otherwise become barred by limitation. There is also considerable force in the contention of the petitioner that all the material facts were not known to him when he had filed the said reference petition under S. 18 of the Land Acquisition Act because the respond not, Municipality, had withheld issue of certified copies of the relevant resolutions for establishment of proposed, hawkers corner. Since the certified copies were withheld, the petitioner was not in possession of full facts and, therefore, intentional waiver of his known rights could no or did not arise. Further, the petitioner has submitted that at the relevant date, right to property was a fundamental right and there could be no waiver of such fundamental right. For the foregoing reasons; we hold that the petitioner is not estopped from challenging the validity of the impugned acquisition. Accordingly, the preliminary objection raised by the respondents fails. 8. We now proceed to consider the merits of the impugned acquisition. We have already noted that the State Government by a Notification dated 9th November, 1976 under S. 6 of the Land Acquisition Act has already declared that the aforesaid plots of land were needed fur a public purpose, namely, for provision of a hawkers corner at Kanthalpara at the expenses of the Naihati Municipality. We have already noted that the State Government by a Notification dated 9th November, 1976 under S. 6 of the Land Acquisition Act has already declared that the aforesaid plots of land were needed fur a public purpose, namely, for provision of a hawkers corner at Kanthalpara at the expenses of the Naihati Municipality. The sub-section (3) of S. 6 of the Act makes such a declaration conclusive that the land is needed for a public purpose or for a company. The learned advocates for both parties have relied upon the decision of the Supreme Court in Smt. Somawanti & ors. The State of Punjab & ors AIR 1963 SC 151 , which considered the extent to which the St1id declaration is conclusive and also the circumstances under which the court may go behind such declaration Mudholkar J. who delivered the majority judgment in Smt. Somawanti’s case (supra), pointed out that the conclusiveness or finality attached to a attached to a declaration under S. 6 of the Act is not only as regards the Ld that the land is "needed" but also as regards the 'question that the purpose for which the land is acquired is in fact a public purpose or what is said to be a company is really a company. The learned Judge proceeded to hold that whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will b final subject, however, to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. To such a declaration the protection of S. 6(3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as S. 6(3) notwithstanding. 9. Mr. To such a declaration the protection of S. 6(3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as S. 6(3) notwithstanding. 9. Mr. Mukherjee, learned advocate for the petitioner, has drawn our attention to several reported decisions in which the Court went behind notifications under S. 6 and when: it was found that the same amounted to fraud against statue, the acquisitions were struck down. In Shyam Behari & others v. The State of Madhya, Pradesh & ors, AIR 1965 SC 427 , a notification under S. 6 stated that the land was needed for a public purpose whereas the entire compensation was paid by a company. Accordingly, the notification was struck down. In Ramkrishna Mission, Howrah v. P.N. Talukder & ors AIR 1965 SC 646 , Wanchoo J. had inter alia observed that the presumption contained in S. 6(3) of the Act did not mean that the Court was precluded from enquiring whether the notification in question was made in fraud of the Act. 10. The Supreme Court in Jage Ram & ors v. The State of Haryana & ors, AIR 1971 SC 1033 , relied upon their earlier decision in Smt. Somawanti’s case (supra), and observed that unless it was shown that there was colourable exercise of power the Court cannot go behind the declaration of the Government and find out in a particular case whether the purpose for which the land was needed was a public purpose or not. 11. Therefore, it is settled law that in spite of the conclusiveness of public purpose under S. 6(3) of the Land Acquisition Act, the writ court can determine whether a particular acquisition is in colourable exercise of powers: where an acquisition is vitiated by legal malice or by malice, in fact, the Court would strike down an acquisition on the ground that the same is mala fide. Further, sub section (3) of S. 6 of the Land Acquisition Act is not a bar to the court examining whether or not the relevant statutory provisions have been complied with. Further, sub section (3) of S. 6 of the Land Acquisition Act is not a bar to the court examining whether or not the relevant statutory provisions have been complied with. For example, where there has been no notification under S. 4 of the Act or there has been contravention of S. 5A of the Act the conclusiveness attaching to a declaration under S. 6 of the Act cannot cure the said fatal infirmities of a land acquisition proceeding. 12. The Commissioners of the Naihati Municipality under S. 98 of the Bengal Municipal Act, 1932 have power to acquire property when any land is required: (a) for the purposes of the Act; (b) for the recoupment of the cost or any portion of the cost of carrying out such purpose. The subsection (l) of S. 98 further provisions that the State Government may at the request of the Commissioners at a meeting proceed to acquire the said land under the provisions of the Land Acquisition Act. The sub-section (b) of S. 98 is applicable in case the Commissioners request the State Government to acquire land for the purpose of recoupment specified in clause (b) of subsection (1) of S. 98. In the instant case, the proposed acquisition was not for the purposes of recoupment. Therefore, the learned advocate for the petitioner did not urge before us that sub-s. (2) of S. 98 would apply to the impugned acquisition proceeding. Therefore, it is not necessary for us further examine the provisions of S. 98(2) of the Act. The sub-s. (3) of S. 98 lays down that the land acquired shall vest in the Commissioners on payment by the Commissioners of the Compensation money and other charges incurred In acquiring the land. The Commissioners under sub-s. (4) are bound to pay to the State Government the cost including all charges and costs referred to in sub-s. (3) of any land acquired for the Commissioners on their application under the provisions of sub-s. (1). The learned advocate for the Commissioners of the Naihati Municipality has filed before is extracts from the municipal records which have been marked with the letter 'X' collectively. On 13th November, 1969 the Commissioners of the Municipality at a meeting considered a report of the Surveyor regarding the: acquisition of land for the proposed hawkers corner. The learned advocate for the Commissioners of the Naihati Municipality has filed before is extracts from the municipal records which have been marked with the letter 'X' collectively. On 13th November, 1969 the Commissioners of the Municipality at a meeting considered a report of the Surveyor regarding the: acquisition of land for the proposed hawkers corner. The Commissioners felt that a separate place was absolutely necessary for hawkers sitting by the side of Aurabinda Road. Accordingly, it was resolved "that the land measuring 09188 of an acre from C.S. 412-426 and No. 497, mouzs Kanthalpara be acquired immediately and possible steps be taken on this regard at the earliest possible convenience. "It is further resolved that Relief and Rehabilitation Department, Government of West Bengal be approached fur financed help for settlement of the hawkers mostly of them are displaced persons from Eastern Pakistan." 13. The said resolution was confirmed at a meeting of the Commissioners held on 28th November, 1969. Thereupon, the Commissioners of the Municipality had approached the State Government for acquiring the aforesaid lands. It is, however, somewhat strange that neither the Commissioners nor the Executive Officer who was subsequently appointed to exercise the powers of the Commissioners recorded any other resolution in the matter of the said proposed acquisition. The aforesaid resolution dated 13th November, 1969 was exploratory and preliminary in nature. Therefore, it was expected that the Commissioner at a meeting thereafter would pass an appropriate resolution for adopting detailed provisions relating to such acquisition of the said hawkers corner and for making financial provisions relating to such acquisition which was to be at the cost of the Commissioner of the Municipality. 14. It appears from the records that after the Executive Officer of the Municipality sent reminders to the office of the Land Acquisition Collector, 24 Parganas, the Collector had called upon the Commissioners of the Municipality to deposit Rs. 8045/- for contingent and establishment charges for acquisition of the land for provision of hawkers corner at Kanthalara. The Chairman of Naihati Municipality by a memorandum dated 23rd March, 1972 forwarded a cheque on State Bank of India for Rs. 8045/-. 8045/- for contingent and establishment charges for acquisition of the land for provision of hawkers corner at Kanthalara. The Chairman of Naihati Municipality by a memorandum dated 23rd March, 1972 forwarded a cheque on State Bank of India for Rs. 8045/-. On 12th September, 1974 the state Government issued a notification under S. 4 of the Land Acquisition Act stating that the aforesaid lands were likely to be needed for a public purpose, namely, for provision of a hawkers corner in the village Kanthalpara within the Naihati Municipality The said proposed acquisition was to be at the expenses of the Municipality. 15. The records produced before us show that the Land Acquisition Collector, 24 Parganas had called upon the Commissioners of the Municipality to deposit a sum of Rs.390000/- as the probable cost and charges for acquisition of the aforesaid-lands. The Commissioners of the Municipality were not in a position to deposit the said amount of money. On 14th June, 1976 Sachindra Nath Poddar as the President of Naihati Hawker’s Union addressed a letter to the Administrator of the Naihati Municipality. The President of the said Hawker's Union stated that he had come to know from the local M.L.A., Sri Tarapada Mukherjee, that all arrangements had been made for setting up of an alternative market for them. The Collector had directed the Municipality to deposit the costs of acquisition hut the Municipality had no means. Therefore, the local M.L.A. had asked the Hawker's Union to be ready to deposit approximately Rs. 400000/-. The President of the Hawkers' Union signified their willingness to pay the price of the land according to 1heir means and offered to deposit the amount immediately. 16. The Executive Officer of the Naihati Municipality had written a letter dated 23rd June, 1976 to the Government of West Bengal, Municipal Services Department on the said subject of acquisition of land for the establishment of a hawkers corner at Kanthalpara. The Special Officer and the Deputy Secretary. Government of West Bengal, Municipal Service Department, by a letter dated 16th July, 1976 informed the Executive Officer of the Municipality that the Government had no objection to the amount of Rs. 387314.94 p. to wards the probable costs of acquisition of land was deposited in the municipal fund by the Hawkers' Union for the purpose. Government of West Bengal, Municipal Service Department, by a letter dated 16th July, 1976 informed the Executive Officer of the Municipality that the Government had no objection to the amount of Rs. 387314.94 p. to wards the probable costs of acquisition of land was deposited in the municipal fund by the Hawkers' Union for the purpose. The Special Officer and the Deputy Secretary, Government of West Bengal by the same letter directed that the amount so deposited by the Hawkers' Union should in no case be diverted for any other purpose. The Naithati Municipality was directed to deposit the said amount in eh Aliproe Treasury with an intimation to the Government for taking necessary action. Thereafter, on 21st July, 1976 the Executive Officer of the Municipality wrote a letter to the said M.L.A. Sri Tarapada Mukherjee, that the Government order had been received and. therefore, Naihati Hawker’s Union might be asked to deposit the amount in question as an initial rent to the municipal fund immediately. A copy of the said letter was forwarded to the President, Naihati Hawkers' Union for information. 17. The respondents have produced before us Receipt No. 27 dated 13th August. 1976 granted by the Executive Officer, Naihati Municipality in respect of Rs. 390000/- from the president of Naihati Hawkers' Union on account of initial rent for hawkers' market. A Photostat copy of the said receipt has been kept with the records of this revision case. Thereafter, the Executive Officer, of the Municipality had deposited the said Slim of. Rs. 390000/- with the Collector, Land Acquisition towards the costs of acquisition of the aforesaid lands. Thereupon, the Government of West Bengal issued the impugned notification under S. 6 of the Land Acquisition. Act. 18. The impugned acquisition is allegedly for a public purpose at the expenses of Naihati Municipality. The construction or a hawkers' corner is a public purpose in the instant case, the said hawkers’ corner was proposed to he put up for rehabilitating the hawkers allegedly squatting on Auravinda Sarani. The Naihati Hawkers' Union is a registered trade union and it was neither a local authority nor a company. In any case the acquisition was not made under Part VII of the Act. The petitioners have contended that the impugned acquisition was really at the instance of the said Hawkers' Union and at their expense. The Naihati Hawkers' Union is a registered trade union and it was neither a local authority nor a company. In any case the acquisition was not made under Part VII of the Act. The petitioners have contended that the impugned acquisition was really at the instance of the said Hawkers' Union and at their expense. It is undisputed that the Naihati Hawkers' Union had deposited the entire amount of acquisition costs with the Naihati Municipality which granted a miscellaneous receipt describing the said amount as initial rent. 19. We are unable to accept the submission of the respondents that the aforesaid amount deposited with the Municipality became part of the munipal fund and therefore, the acquisition costs deposited by the Municipality parity should be considered as payment made put of the municipal fund. 20. There are two serious difficulties in the way of accepting the above contention. In the first place the Commissioners or the Municipality or thereafter the Executive Officer of the Municipality who had been exercising powers of the Commissioners at a meeting or otherwise did not pass any resolution for granting said tenancy settlement of the sites in the proposed hawkers’ corner in favour or the said Naihati Hawkers' Union or its individual members. The power of the Commissioners or the Municipality to purchase, sale or exchange municipal property is regulated by. S. 102 or the Bengal Municipal Act, 1932. Section 102 provides that the Commissioners at a meeting may purchase, sale, lease or exchange or otherwise dispose of land not required for such purpose which they have acquired for purposes of recoupment. In the instant case, no formal contract was entered into between the Commissioner of the Municipality, on the one hand, and Naihati Hawkers' Union on the other. The respondents have admitted that the 'provisions of S. 103 of the Bengal Municipal Act were not fulfilled in the instant case. There was not even any draft terms of settlement of the said hawkers' corner in fovour Naihati Hawkers' Union The area of the and to be leased out, the rate of rent payable, and other terms and conditions were not decided. Thus, the statutory requirements of Ss. 102 and 103 of the Bengal Municipal Act were not fulfilled in the matter of the proposed settlement of the hawkers corner in favour of Naihati Hawkers' Union. 21. Thus, the statutory requirements of Ss. 102 and 103 of the Bengal Municipal Act were not fulfilled in the matter of the proposed settlement of the hawkers corner in favour of Naihati Hawkers' Union. 21. The respondents strongly relied upon the facts that Government had approved the proposal made by the Executive Officer of the Municipality that the Hawkers' Union may be asked to deposit the costs of acquisition as initial rent to municipal fund and the receipt granted by the Municipality also described the amount, deposited by the Union as initial rent. When there was no resolution by the Commissioners or by the Executive Officer exercising powers under S. 67 A of the Act, there was no lease or even a contract lease in favour of Naihati Hawkers' union without a valid contract between the Municipality and the Hawkers' Union the sum of Rs. 390000/- received by the Municipality from the said union did not create any vested right in favour of the said union and the payment in question cannot be considered as rent. 22. The Commissioners of the Naihati Municipality being a statutory body their actions in contravention of the mandatory provisions of Ss. 102 and 03 of the Bengal Municipal Act would be void ab initio. In this connection, see the decision of Bayayesh Mukherjee J. in Jitendra Nath Mukherjee v. Commissioners of Baduria Municipality & anr. AIR 1967 Cal. 423 . 23. There is another difficulty in the way of treating the for said sum of Rs. 390000/- as part of the Municipal fund of Naihati Municipality. The State Government while according its sanction to the acceptance by the Municipality of the said amount from the Naihati Hawkers' Union had stipulated that the amount so deposited by the hawkers' Union should in no case be diverted for any other purpose. Therefore, the Municipality was not permitted said amount of Rs. 390000/- with the other sums standing at the credit of the municipal fund. The Municipality was not entitled to apply the 'aid amount for other purposes specified in S. 108 of the Bengal Municipal Act. The Commissioners or the Executive Officer of the Municipality did not record any resolution authorising withdrawal of the said Rs. 390000/- and for depositing the same to the credit of the Land Acquisition Collector. 14. The Municipality was not entitled to apply the 'aid amount for other purposes specified in S. 108 of the Bengal Municipal Act. The Commissioners or the Executive Officer of the Municipality did not record any resolution authorising withdrawal of the said Rs. 390000/- and for depositing the same to the credit of the Land Acquisition Collector. 14. It seems strange that both the Municipality and the State Government had proceeded in a casual and informal manner in the matter of acquisition of the said plots of land. The Commissioners themselves did not prepare any detailed plant after the Municipal Surveyor in the year 1969 had made certain suggestions regarding the acquisition of land for hawkers' corner. Details of the said proposal were never worked out. Beyond passing a preliminary resolution dated 13th November, 1969 the Commissioners of the Municipality or its Executive Officer thereafter did not pass any further resolution in this behalf. The provisions of Ss. 102 and 103 of the Act were not complied with. The terns and conditions of granting settlement of the said hawkers’ corner in favour of the prospective stall holders were never settled. Without any agreement and without deciding the proposed terms of settlement, the President of the Howkers’ Union, Naihati was permitted to deposit the entire costs of acquisition. 25. For the foregoing reasons, we conclude that the proposed acquisition was not for the purpose of Naihati Municipality because the mandatory provisions of the Bengal Municipal Act were not observed, we must repel the submission that the proposed acquisition was for the purposes of the Municipality at its own expense. 26. Mr. Chatterjee, learned advocate for the State, has submitted that the aforesaid illegalities on the part of the Commissioners of Naihati Municipality cannot in any event invalidate the acquisition proceeding because the respondents have proved that provision of Ss. 4, 5A and 6 of the Land Acquisition Act were complied with. According to Mr. Chatterjee, the State was only concerned with the compliance of the provisions of the Land Acquisition Act and not that what happened in the domestic sphere of the local authority at whose instance the proposed acquisition is being made. The Land Acquisition Act being a self-contained Act the State Government was authorised in law to make acquisition in favour of a local authority who did not proceed under S. 98 of the Bengal Municipal Act. According to Mr. The Land Acquisition Act being a self-contained Act the State Government was authorised in law to make acquisition in favour of a local authority who did not proceed under S. 98 of the Bengal Municipal Act. According to Mr. Chatterjee, the Bengal Municipal Act does not control the powers of the State Government to acquire the land under Land Acquisition Act. 27. In this connection, Mr. Chatterjee relied upon the decision of the Supreme Court in Ambalai Purshottam v. Ahmedabad Municipal Corporation AIR 1968 SC 1223 . The Supreme Court in Ambalal's case (supra), rejected the contention that the condition precedent to the exercise of the power to acquired lands had not been fulfilled. In this connection, reliance had teen placed upon S. 52 or the Bombay Municipal Borough, Act, 1925, which inter alia provided that when there was any hindrance to the permanent or temporary acquisition by a municipality upon payment of any land or building, the provincial government may proceed under the Land Acquisition Act and vest such land or building in the municipality on the latter repay all costs incurred by the Government. Shah J. who delivered the judgment. In paragraph 9 inter alia, observed that S. 52 of the Bombay Municipal Boroughs Act authorise the municipality to purchase property by private tready to approach the government for compulsory acquisition of land for a public purpose. Thus the said provision sets out alternative modes of acquiring property hut the same was not a condition precedent to the Government exercising its powers under the Land Acquisition Act. The learned Judge further observed. The scheme of the Land Acquisition Act whenever the land is needed for a public purpose or is likely to be needed for a public purpose, the Government may resort to the machinery provided under the Act fur acquiring the land. Where the public purpose is the purpose of a local authority and the provisions of the Land Acquisition Act are put in force for acquiring Land at the cost of any fund controlled of managed by a local authority, S. 50 of the Land Acquisition Act provides that the charges of and incidental to such acquisition shall be defrayed from such fund, There is no other bar statutory or otherwise to the acquisition of the land for purposes of a municipality". These observations in Amhala’s cast" (supra), were made in the context of the provisions of S. 52 of the Bombay Municipal Boroughs Act, 1925. Second y, the impugned notifications under S. 4 and 6 of the Land Acquisition Act categorically stated that the lands of the petitioners were proposed to be acquired for the purposes of construction of a Hawkers' Corner at the expenses of Naihati Municipality. We have found that in fact the municipality did not pass necessary resolution under S. 98 of the Bengal Municipal Act. The municipality also did not take appropriate steps for construction of the said hawkers' corner. The municipality by a requisite resolution did not authorise incurring of expenses by the municipality for acquisition of the said land Therefore, in the eye of law the purpose mentioned in the impugned notifications under S. 4 and 6 of the Land Acquisition Act was non existent. The aforesaid facts thus invalidated the proceeding, for acquisition under the Land Acquisition Act. The State Government before issuing the aforesaid notifications did not apply its mind to the said fact that there was no lawful request by the Commissioners of the Naihati Municipality for acquisition of the lands in question the municipality did not authorise by a resolution incurring all expenses out of the munipal fund. The municipality had purposed to accept the entire cost of acquisition from Naihati Hawkers’ Union without any resolution by the Commissioners authorising acceptance of said money form the Union. No resolution was also passed for granting any lease or licence of the said hawkers’ corner to the Naihati Hawkers’ Union. Therefore, the purpose of the proposed acquisition was not a public purpose as specified in the impugned notifications. We have also stated that expenses were not really defrayed from the fund of the Commissioners as required under S. 5 of the Land Acquisition Act. 28. The decision of the Supreme Court in Kanaiyalal Maneklala Chinai & anr v. State of Gujarat & ors AIR 1970 SC 1188 , is also distinguishable on facts. The said decision was rendered with reference to the' scope of Ss. 77 and 78 of the Provincial Municipal Corporation Act, 1944. Their Lordships in the said case rejected the contention that the power to move the State Government under S. 78 of the said Act to acquire land was not conditioned by the limitations suggested by the appellant. The said decision was rendered with reference to the' scope of Ss. 77 and 78 of the Provincial Municipal Corporation Act, 1944. Their Lordships in the said case rejected the contention that the power to move the State Government under S. 78 of the said Act to acquire land was not conditioned by the limitations suggested by the appellant. On construction of S. 77 of the said Act the Court held that even if no attempt had been made to acquire land by agreement, it was open to the municipal corporation with the approval of the Standing Committee and subject to other provisions of the Act to move the Provincial Government to lake steps for acquisition of land. It appears that S. 77 of the Provincial Municipal Corporation Act, 1949 was somewhat stmilar to the provisions of S. 52 of the Bombay Municipal Boroughs Act, 1925. The Bengal Municipal Act, 1932 does not contain any provision pari materia either with S. 52 of the Bombay Municipal Boroughs Act. 1925 or S. 77 of the Provincial Municipal Corporation Act, 1949. Their Lordships in Kanaiyalal Maneklal's case (supra) further held that acquisition of land by State for setting up a memorial of Mahatma Gandhi was a public purpose and such a notification need not specify that it was needed for the municipality. Notifications under 55. 4 and 6 of the Land Acquisition Act need not specify the instrumentality which was to execute public purpose. But for the instant case, the infirmity in the impugned notifications under Ss. 4 and 6 were much more serious. We are not concerned with the mere inaccuracy in stating the purpose for which the lands were proposed to be acquired. But, we are concerned with a case where the condition precedents for issuing notifications under Ss. 4 and 6 have been not fulfilled. In the absence of non-fulfilment of the statutory provisions indicted hereinbefore the purpose mentioned in the impugned notifications under Ss. 4 and 6 of the Act must be held to be non-existent. 29. The respondents submitted that even if the estimated costs of acquisition were raised by Naihati Hawkers' Union, the same did not invalidate the impugned acquisition. It was further contended that the payment of the acquisition costs were made out of a fund controlled by the Commissioners of Naihati Municipality, who were admittedly a local authority. 29. The respondents submitted that even if the estimated costs of acquisition were raised by Naihati Hawkers' Union, the same did not invalidate the impugned acquisition. It was further contended that the payment of the acquisition costs were made out of a fund controlled by the Commissioners of Naihati Municipality, who were admittedly a local authority. According to the respondents the law does not further require that the local authority must itself own the money which is paid as acquisition costs. In support of the above submission the respondents relied upon the decision of Sarjoo Prasad C. J. and Ram Labhaya J, in Samiruddin Sheikh v. Sub-Divisional Officer & ars AIR 1954 Assam 81. In the said case, the declaration under S. 6(1) stated that the acquisition was for a public purpose. The villagers had raised and deposited the public costs of acquisition. The Division Bench in Samiruddin Sheikh's case (supra, held that the costs having been deposited in government treasury presumably the purpose of the deposit was that the costs would be controlled and managed by the local authority. The villagers themselves would not manage and finance the acquisition proceeding. The actual costs of acquisition might be more than the amount deposited by the villagers and the excess of the deposit may have to be contributed from the public revenues. The said decision had placed reliance upon the Full Bench decision in AIR 1945 Madras 394, which held that it was sufficient compliance with the proviso to S. 6(1) of the Act if any part of the compensation was paid out of the public funds; the contribution of 1 anna by the government towards compensation with the provision. The petitioners have pointed out that the later Full Bench of Assam and Nagaland High Court in Chandra Kanta Sharmah v. The Deputy Commissioner & Collector of Bawgong & Ors AIR 1971 Assam and Nagaland 1, had disagreed with the aforesaid view in AIR 1954 Assam 81, that merely deposit of the compensation money by the villagers in the treasury amounted to compliance with money proviso to S. 6(1). The majority of the said Full Bench held that where acquisition is not for a company, the acquisition should be for a public purpose and the compensation money to be awarded must either wholly or in part come out of the public revenues or form part of a fund controlled by local authority. Reliance was placed upon the Supreme Court decision in Shyam Behari v. State of Madhya Pradesh AIR 1965 SC 427 . In the said Assam Full Bench case, the declaration stated that the land was required to be taken by the government at the public expense for a public purpose, namely, construction of girls’ M. E. School building. When the entire amount of compensation to be awarded was paid by the school authorities, the Full Bench held that it was impossible to hold that any part of the public revenues was utilised for payment of compensation. Merely because the money was deposited in the treasury that would not amount to compliance with the proviso to S. 6(1). The school authority was held not to be local authority we respectfully agree with the above Full Bench decision in Chandra Kanta Sharmali’s case (supra). In the instant case, the mere deposit of the compensation money by the Naihati Hawkers’ Union did not result in the said fund forming part of the municipal fund. We have already pointed out that there was no valid resolution for granting lease by the Municipality in favour of the said Hawkers’ Union. There was also no contract in writing between the Municipality and the said Hawkers’ Union. Therefore, when the Municipality subsequently deposited in the treasury the said money advanced by the Hawkers’ Union towards the costs of proposed acquisition, it was impossible to hold that the costs of acquisition had come out wholly or partly out of fund controlled or managed by a local authority. In is unnecessary to consider the rights, if any, of the Hawkers’ Union against the Municipality in respect of the aforesaid amount of Rs. 390000/-. The Hawkers’ Union have not even claimed refund of the said amount from the Municipality. Therefore, we need not consider the submission of Mr. In is unnecessary to consider the rights, if any, of the Hawkers’ Union against the Municipality in respect of the aforesaid amount of Rs. 390000/-. The Hawkers’ Union have not even claimed refund of the said amount from the Municipality. Therefore, we need not consider the submission of Mr. Dasgupta that even if the contract to let out the hawkers' corner to his clients was in contravention of the Bengal Municipal Act, the municipal authority was in the position of the trustees and that the Hawkers' Union have certain equitable' rights in respect of the said amount as against the Municipality. Said question if necessary may be decided in any other proceeding according to law. 30. The respondents had also relied upon the observations of the Supreme Court in paragraph 59 of their judgment in R. K. Dalmia v. Delhi Administration AIR 1962 SC 1821 (1834). The Supreme court while considering a charge under S. 405 of the India Penal Code had observed that the expression “fund” in the charge was used in eh sense that the two accused had dominion over the amount credited to the Bharat Insurance Company in the accounts of the company inasmuch as they could draw cheques on that account. These observations have no relevance for interpreting the proviso to S.6(1) of the Land Acquisition Act. 31. The decision of the Supreme Court in Ratilal Sankar bhai & ors & ors. v. State of Gujarat & ors. AIR 1970 SC 984 . is also distinguishable. The Supreme Court in the said case held that "company" as defined in the Land Acquisition Act included a cooperative society. Therefore, the impugned acquisition was held to be for a public purpose. Secondly, the court also noted that the State Government had contributed a substantial sum towards the compensation payable for the acquisition in question. Therefore, the Supreme Court had rejected the contention that the proposed acquisition was invalid inasmuch as there was no compliance with Ss. 40 to 42. In the instant case, the acquisition is bad for not fulfiling the requirements of the proviso to S. 6(1) of the Land Acquisition Act. The Slate itself has not contributed towards the proposed acquisition, We have found that the amount deposited by the Municipality cannot be considered to be out of fund controlled or managed by if. 40 to 42. In the instant case, the acquisition is bad for not fulfiling the requirements of the proviso to S. 6(1) of the Land Acquisition Act. The Slate itself has not contributed towards the proposed acquisition, We have found that the amount deposited by the Municipality cannot be considered to be out of fund controlled or managed by if. The cost of acquisition were entirely paid by Naihati Hawkas' Union which was not a local authority. 32. For the foregoing reasons, the Rule absolute succeed and the impugned notifications under Ss. 4 and 6 of the Land Acquisition Act should be quashed but the respondents would be at liberty to proceed afresh in accordance with law after fulfilling the relevant provisions of the Bengal Municipal Act and the Land Acquisition Act in the matter of the acquisition of the plots in question. 33. We, therefore, make this Rule absolute. Let a writ or Certiorari issue quashing the impugned notifications under Ss. 4 and 6 of the Land Acquisition Act in respect of the lands of the petitioner' mentioned in the writ petition. Let a writ of Mandamus also issue commanding the respondents (not) to give effect or further effect to the aforesaid notification. Liberty is given to the respondents to proceed afresh in accordance with law. There will be no order as to costs. Let the operation of the judgment be stayed for one month from date. B. C. Ray, J.-I agree, Rule made absolute.