Authored By : T. Ameer Ali, Harry Lushington Stephen

T. Ameer Ali and Harry Lushington Stephen, JJ.

1. The Plaintiff is the owner of certain premises inCalcutta, which have been acquired by Government under the provisions of Act Iof 1894 (the Land Acquisition Act) and he seeks in this action to have itdeclared that all the proceedings taken by the Local Government in the matterof such acquisition should be declared void and of no force or effect and toobtain a mandatory injunction restraining the Government as well as the Bank ofBengal, for whom the land is purported to be acquired, from taking any stepwhatsoever towards taking possession of the said premises.

2. He also claims damages for the costs incurred by him inthe conduct of the proceedings before the Land Acquisition Collector.

3. In order to understand the contentions raised on hisbehalf, it is necessary to set forth in some detail the circumstances underwhich the Land Acquisition proceedings were instituted.

4. The Bank of Bengal, which is a Company incorporated underAct XI of 1876, appears to have been in need of extending its premises for thepurpose of providing improved accommodation for the Public Debt Office and theGovernment Accounts Department.

5. The premises in question being adjacent to the Bank, itattempted, in the first instance, to obtain the same by private purchase fromthe Plaintiff.

6. Upon the evidence we have no doubt that the solicitor forthe Bank broached the subject first to the Plaintiffs agent on the 5th of July1900. The conversation on the subject is detailed by Mr. McNair, who statesthat Mr. Cohen then told him the Plaintiff would not take even four lacs forthe property, upon which Mr. McNair replied that in that case there was nothingfor it but to acquire the land through the Government. There was a subsequent interviewbetween the Banks solicitor and the Plaintiffs agent, when the latterinformed Mr. McNair that he was not going to take even four lacs. The Bankconsidering the demand as exorbitant and unreasonable applied to the Governmenton the 19th of July 1900 for the acquisition of the premises in question underthe Land Acquisition Act. In their letter to the Chief Secretary they mentionedthe circumstances which compelled them to make the application and expressedtheir willingness to enter into the agreement with Government required by theAct and they prayed that the necessary steps as required by the law might betaken for the acquisition of the premises.

7. On the 30th of July the Government of Bengal by theirletter No. 2726, addressed to the Secretary to the Board of Revenue, LowerProvinces, requested the Board to depute their Secretary to make the necessaryenquiry under Section 40 of the Act and to report the result to Government asquickly as possible.

8. At that time Mr. Carlyle, who has given his evidence inthis case, was acting as Secretary to the Board and it would appear that, inaccordance with the Governments request, he was deputed to make the enquiry.

9. There is a note on the margin of exhibit B proved to bein Mr. Carlyles handwriting in these terms--"I will go to the Bankto-morrow as arranged yesterday."

10. On the following day (1st of August) Mr. Carlyleproceeded to the Bank and after ascertaining the facts, which he details in hisevidence, he submitted a report embodying the result of his enquiry for theinformation of Government. The original report has been put in and marked asexhibit 5 (the draft is marked as exhibit 4). A great deal of time has beenspent in discussing this draft; with what object it is difficult to understand.It appears from the evidence of the Plaintiffs attorney that he had obtained acopy of exhibit 4, which was the only report then in the possession of theGovernment Solicitor; he found several mistakes in his copy and went to theGovernment Solicitors office to compare it with the original and apparently toobtain inspection of other documents. Exhibit 4 was shown to him when hementioned to Mr. Sowton, an assistant of the Government Solicitor, that itappeared to be a draft (which in fact it is), to which Mr. Sowton replied thatthat was the only report they had in their possession.

11. Mr. Gregory admits that Mr. Sowton did not tell him thatthat was the report submitted to Government or that there was no other report.It is not suggested, nor could it he suggested, that exhibit 5 is a subsequentconcoction for the purposes of this suit; nor has our attention been drawn toany points of difference between exhibits 4 and 5.

12. A great deal of public time, however, has been taken upin the examination and cross-examination of witnesses with Regard to the firstdocument.

13. To proceed with the narration of facts,--from the notemade on the draft, as also from Mr. Carlyles evidence, it is clear that theoriginal document and the plan were handed over personally by this officer tothe Secretary to the Government of Bengal in the Revenue Department.

14. On receipt of Mr. Carlyles report the Government ofBengal, by its letter No. 2826, dated the 3rd of August 1900 (exhibit No. 3),informed the Board of Revenue that it was satisfied that the proposedacquisition was for the construction of a building and that such building waslikely to prove useful to the public. The Government at the same time asked theBoard to call upon the Bank to submit a draft deed for the approval ofGovernment. We shall refer, later on, to certain correspondence which passedabout this time between the Banks solicitors and the Government Solicitor,upon which the Plaintiff has placed reliance in support of his allegation thatthe Government was colluding with the Bank in the matter of this acquisition.

15. A draft agreement appears to have been submitted by theBank of Bengal and on the 14th of August 1800 (see exhibit 7) the LocalGovernment communicated its approval of the draft to the Board of Revenue.

16. In the same letter a direction was given for thepreparation of an estimate of cost for acquiring the land. In accordance withthis direction a preliminary estimate was made by P.C. Mitter, Land AcquisitionAct Collector at the time and submitted on the 22nd of August 1900 (exhibit D).

17. This estimate showed the probable costs, inclusive ofthe statutory allowance, as Rs. 2,63,949.

18. On the 27th of August the estimate was returned to theCollector for the correction of certain mistakes and at the same time the planof the land was called for.

19. On the 31st of August the Board re-submitted theestimate prepared by the Collector for the sanction of Government with arevised declaration.

20. In this letter (exhibit F) the Board pointed out thedifference between the Banks estimate, which was Rs. 2,42,000 and the estimateprepared by the Collector.

21. On the 3rd of September the Government issued forgeneral information a notification embodying the terms of the agreement enteredinto on the 31st of August between the Secretary of State for India in Counciland the Bank. This notification was published in the local Gazette on the 5thof September 1900 and refers in express terms to the premises, 1, Esplanade, Westand 1 and 2, Strand.

22. On the same date the Government issued its declarationunder Section 6, which was published in the Calcutta Gazette of the 5th ofSeptember 1900.

23. The agreement was also published in accordance with therequirements of the Act in the Gazette of India of the 8th of September.

24. On the 3rd of September Ganga Charan Chatterjee wasappointed Land Acquisition Collector for the districts of Nuddea, Jessore,Faridpur and Calcutta and was posted to the headquarters station of the 24-Pergunnahs.

25. On the same date (exhibit H) the Local Governmentcommunicated its sanction of the estimate of costs submitted by the Collectorof the 24-Pergunnahs and requested that the necessary steps might be taken foracquiring the lands in question.

26. On the 5th, pursuant to the direction contained inGovernment letter of the 3rd of September, Mr. Carlyle, the Secretary to theBoard, instructed Ganga Charan Chatterjee to make the necessary arrangementsfor starting the land acquisition proceedings at once, as the matter was veryurgent.

27. This communication was in accordance with Section 7 ofthe Act. Under Section 8 Ganga Charan Chatterjee made on the 7th of Septemberthe following order: - "Issue general notice at once. Surveyor will pleasemeasure land at once and submit measurement papers to this office."

28. On the same day under Section 9 of the Act a notice wasissued on the Plaintiff signed by the Collector. On the 23rd another noticeunder Section 10 was issued upon the Plaintiff to make or deliver a statementas required under the Act.

29. A fresh special notice was also issued on the same dateunder Section 9, Clause 5 (exhibit M).

30. Ganga Charan Chatterjee commenced his proceedings asshown above on the 7th of September and concluded the same on the 23rd ofDecember. He made his award, as it is called in the Act, on the last mentioneddate, fixing the value of the property, including the tenants interest and thestatutory allowance, at Rs. 2,63,313-4.

31. On the 8th of January he gave notice to the Plaintiffunder Section 12, Sub-section 2 of the Act, tendering the amount to which thePlaintiff was entitled, viz.,--Rs. 2,54,213-4.

32. On the 16th of January the Plaintiffs solicitorsnotified to the Land Acquisition Collector that he would not accept the amountawarded.

33. We are passing over for the present certaincorrespondence which appears to have taken place about this time between theLand Acquisition Collector and the Banks solicitors, as it will be dealt withunder another branch of the case.

34. On the 22nd of January 1901 the case which had proceededso far in the manner above described entered upon a new phase. Mr. Cohen, thePlaintiffs agent, states that the Plaintiff had spent a sleepless nightthinking over this award and that on the 22nd he obtained advice from aCounsel, whom he names and then for the first time became aware of what hedescribes as his rights. Thereupon on the same day the Plaintiffs solicitorswrote to the Land Acquisition Collector, informing him of the advice they hadobtained that the Government were not authorised under the Land AcquisitionAct, to acquire the premises in question for the Bank of Bengal and that theirclient was prepared to take the necessary steps to prevent their proceedingfurther to do so and asking him (i.e., the Land Acquisition Collector) in themeanwhile not to take possession of the premises.

35. On the 5th of February, however, the Plaintiff appliedfor a reference to the Civil Court under the provisions of the Act and thatreference is still pending.

36. On the 31st of February the Board, in view of theobjections of the Plaintiffs solicitors, directed the Deputy Collector todefer taking possession.

37. On the 19th of March the Plaintiffs solicitors wrote tothe Chief Secretary to the Government of Bengal, enquiring what Government wasgoing to do and threatening to file a suit and on the 28th, Government repliedtelling them that proceedings would remain in abeyance for the present. On the29th, Messrs. Gregory and Jones addressed a more peremptory letter toGovernment calling upon them to withdraw at once from the acquisition,otherwise a suit would be filed.

38. On the 3rd of May the Board of Revenue directed theCommissioner of the Division to resume the proceedings and on the 17th of MayMessrs. Gregory and Jones wrote to the Chief Secretary warning Governmentagainst taking any action and saying that "they were acting in concertwith Morgan and Co."

39. On the 30th of May 1901 the Under-Secretary to theGovernment of Bengal informed the Plaintiffs solicitors that Governmentintended to proceed with the land acquisition and referred furthercommunication on the Plaintiffs behalf to the Board of Revenue.

40. This suit was filed on the 15th of May in the same year.The Defendants are the Secretary of State, the Bank of Bengal and MohanundoGupta, the present Land Acquisition Collector. He was added as Defendant inplace of Ganga Churn Chatterjee on the Plaintiffs application and at his riskby an order made on the 20th of June 1901. The Plaintiff obtained a furtherorder on the 30th of June last for amendment by the insertion of certainmatters, which are embodied in paras. 22 to 26 of the plaint. He alleges thatthe proceedings taken by the Government are from their inception not incompliance with the Act; that the Government has no power to acquire thepremises for the Bank; that no enquiry was held or consent given in fact, asrequired under the Act; that he had no notice of any such enquiry and that theenquiry is therefore bad and of no effect; that the agreement entered intobetween the Bank and the Government is illusory for various reasons, which weshall discuss later on; that the declaration is not in accordance with the lawand that the words "for a public purpose" mentioned therein wereinserted "fraudulently and falsely;" that the proceedings before the"Land Acquisition Collector were illusory and in fraud of the Act; that heproceeded on the estimate sanctioned by the Government and did not form hisjudgment on the evidence before him; that as a judicial officer he was confinedto the evidence given in Court; and generally he charges, if wards have anymeaning, that the proceedings taken by Government were collusive, fraudulentand illusory. This in substance represents his allegations.

41. As we shall deal seriatim with his objections, it is notnecessary to do more than indicate at present the nature of his contentions.

42. The principal Defendants, the Secretary of State forIndia in Council and the Bank of Bengal, traverse in toto the allegations madein the plaint and the insinuations contained therein; they assert that all theproceedings taken by Government were in strict conformity with the provisionsof the Act and the rules framed thereunder; and that there is absolutely noground for charging fraud against either of the Defendants; they deny that thePlaintiff was entitled to any notice of the enquiry held by Mr. Carlyle, orthat it is bad, because the Plaintiff had no notice; they assert that thedeclaration is in conformity with the law and they deny that the words"for a public purpose "were inserted "falsely orfraudulently;" they deny also that the proceedings Before the Collectorwere illusory or a fraud upon, or an evasion of the Act. They further contendthat this Court is not competent to enquire into or determine the questionsraised by the Plaintiff; that the proceedings under the Act taken by the LocalGovernment, as well as before the Collector, were of a ministerial characterand cannot be reviewed by the Civil Court. They further contend that the suitis not maintainable in the absence of a proper notice under Section 424 of theCode of Civil Procedure and Section 52 of the Land Acquisition Act. When thecase came on for trial certain issues were suggested by learned Counsel on bothsides. We did not, however, accept their suggestions, but settled separateissues, which appear to us to cover all the questions raised in the case. Thesuggestions of the parties, however, have been allowed to remain on the recordto indicate their respective contentions.

43. We propose to deal first with the objections of theDefendants relating to the notices under Section 424 of the Code of CivilProcedure and Section 52 of Act I of 1894. It is contended by the learnedAdvocate-General that, although a notice of action had been given to theSecretary of State as provided for under the section of the Code of CivilProcedure in respect of the allegations contained in the original plaint, theSecretary of State is entitled to a further notice with regard to the cause ofaction disclosed in the amendments made under the order of the 30th of Junelast; he contends that the amendments allege an entirely new cause of action,based upon an allegation of fraud; and he refers to the case of the Secretaryof State for India in Council v. Rajlucki Debi I.L.R. 25 Cal. 239 [LQ/CalHC/1897/2] in support ofhis proposition that the provisions of Section 424 must be strictly compliedwith. Section 424 relates to the institution of a suit against the Secretary ofState for India in Council. There is nothing in the law to show that in case ofany amendment necessitated by the alleged discovery of facts previously unknownto the Plaintiff, the Secretary of State should have a further notice of twomonths. Although the Appellate Court has laid down that the section should beliterally construed and strictly applied in favour of the necessity for notice,we are not disposed to extend its operation beyond the actual words used. In thecase before us the relief asked for is not altered by the amendments, whichonly embody certain further materials in support of the Plaintiffs contention.It was also urged by the learned Advocate-General that notice not having beenserved on Mohanundo Gupta, the suit against him is bad and ought to bedismissed. He is not sued for any act done by him independently of theGovernment and no separate relief is asked for against him. He is joined in theaction in order that he may be restrained by an order of this Court from givingeffect to the instructions received by him. Under these circumstances we do notthink notice of action is required in his case.

44. With respect to the objection under Section 52 of theLand Acquisition Act, which applies chiefly to the Bank of Bengal, we are ofopinion that the section in question refers to a tortious act done under theenactment. It is not alleged that save and except the proceedings taken therehas been any act done in pursuance thereof. We think, therefore, that theobjections in bar, so to speak, taken on behalf of the Defendants must beoverruled.

45. We now come to the contentions of the Plaintiff whichappear to us to group themselves under four heads:

(1) As regards the sufficiency and legality of the proceedingsunder Part YII of the Act.

(2) As to the legality of the proceedings taken before theCollector and the validity of the award made by him.

(3) As regards the charge that the whole proceeding wascollusive and illusory and a fraud upon the Act.

(4) As regards the jurisdiction of the Land AcquisitionCollector to deal at all with the matter.

The fourth objection may be disposed of in a few words.

46. It is suggested that as the premises in question aresituated in Calcutta, the Collector sitting at Alipore had no jurisdiction todeal with the matter.

47. It appears to us that there is no substance or force inthis contention.

48. The officer in question was posted to the Sudder stationof the 24-Pergunnahs, namely, Alipore. His office was located there. Hisjurisdiction under the Act extended over several districts, including Calcutta.He held his sittings at the office to which he was posted. No authority hasbeen pointed out to us in support of the proposition that he could not hold hisenquiry at this office with respect to property situated in any portion of thearea over which he had been invested with the power of acquiring the land.Admittedly this is the first time that an objection of this kind has ever beenput forward; and although that is no ground for holding that it has no force,it seems to us that it lies on the Plaintiff to substantiate his objection bysome authority.

49. We have not been referred to any law or principle orprecedent in support of the extraordinary proposition put forward on hisbehalf. We accordingly overrule this objection.

50. In order to determine the questions summarised under thefirst three heads, it is necessary to examine the provisions of the law. We mayobserve that previous to the enactment of Act I of 1894, the law in force wasAct X of 1870. The present Act differs in material particulars from the formerAct, although in its main features it proceeds upon the same lines. It is anAct authorising the Local Government to make compulsory acquisition of landsfor public purposes and for companies and for determining the amount ofcompensation to be made on account of such acquisition. In making theacquisition the wishes of the owner of the land are wholly irrelevant under theAct. It does not contain any provision for any objection on the part of theowner to the acquisition itself. All his objections are limited to the amountof compensation and matters connected therewith, such as measurement and area.In the case before us the acquisition purported to be made by the LocalGovernment was for a company, namely, the Bank of Bengal. A Company is definedto mean a Company registered under the Indian Companies Act, 1882, or under the(English) Companies Acts, 1862 to 1890, or incorporated by an Act of Parliamentor of the Governor-General in Council or by Royal Charter or Letters Patent.The Bank of Bengal admittedly is a Company within the meaning of the Act; andalthough it has been contended that, inasmuch as the Bank had the power underits own Act of 1876 to acquire land, the Local Government could not take stepsunder the Land Acquisition Act to acquire lands for the Bank, no authority hasbeen cited to us nor has any provision of the law been referred to, to justifythe contention that the Local Government could not in this instance take theaction it has done. Section 6 provides that, whenever it appears to the LocalGovernment that any particular land is needed for a public purpose, or for aCompany, a declaration shall be made to that effect under the signature of aSecretary to such Government, or of some officer duly authorised to certify itsorders. This provision is subjected to those of Part VII of the Act and to theproviso that no such declaration shall be made, unless the compensation to be awardedfor such property is to be paid by a Company or wholly or partly out of publicrevenues or some fund controlled or managed by local authority. It isunnecessary at present to refer to sub-ss. 2 and 3 of a. 6. Part VII, to whichthe provisions of Section 6 are subjected, deals with the acquisition of landfor companies. Section 38 is immaterial for the purposes of this case, as thepresent proceedings were not taken under Section 4. Section 39 declare thatthe provisions of Sections 6 to 37, both inclusive, shall not be put in forcein order to acquire land for any Company, unless with the previous consent ofthe Local Government, nor unless the Company shall have executed the agreementhereinafter mentioned. Under Section 39, therefore, the proceedings underSections 6 to 37 cannot be put in force without the previous consent of theLocal Government, nor unless the Company for which the land is going to beacquired shall have executed the agreement to which reference is made inSection 41. Section 40 declares that the consent provided for in Section 39shall not be given, unless the Local Government be satisfied by an enquiry heldas "hereinafter provided" (1) that such acquisition is needed for theconstruction of some work (sic) that such work is likely to prove useful of thepublic. Under Sub-section 2 the enquiry is to be held by such officer and atsuch time and place as the Local Government shall appoint. To the provisions ofSub-section 3 we shall refer presently. The enquiry which is required underSub-section 2 is for the purpose of satisfying the Local Government. Theapplication which is made to the Local Government is made by the Company on theallegation that the acquisition is needed for the construction of some work.The Company, therefore, has to satisfy the Local Government as to the realityand bona fides of the said allegation. It has also to satisfy the Governmentand the Government is to satisfy itself that the work which is proposed to beconstructed is likely to prove useful to the public. The only parties concernedin this enquiry are the Government on one side, which has to be satisfied andthe Company, which has to furnish materials for the purpose of satisfying theLocal Government. There is no provision in this section that any other personshould be summoned or required to attend at the enquiry contemplated.

51. It is contended, however, on behalf of the Plaintiffthat, as under Sub-section 3 the officer appointed for the purpose of holdingthe enquiry is authorised to summon and enforce the attendance of witnesses andto compel the production of documents by the same means and as far as possible,in the same manner as is provided by the Code of Civil Procedure in the case ofa Civil Court, it is evidently intended that the enquiry should be a judicialenquiry and that all persons interested in the subject-matter of the enquiryshould have an opportunity of attending and submitting their objections. Insupport of this contention an enormous number of cases have been cited, some ofthem being under the Land Clauses Consolidation Act, others relating to theright of a member of a club to be present at an enquiry held by the generalbody of the members with a view to his expulsion. There is no analogy betweenthe latter class of cases and the question under discussion. There the"enquiry" is of a direct and personal character: under Section 40 the"enquiry" is of a special nature limited to a particular object.

52. As regards the cases decided under the English statutes,no useful purpose, in our opinion, is served by referring to them in construingIndian enactments; for, unless the English statute and the Act of the IndianLegislature are in pari materia, instead of affording any help, they only tendto confuse the consideration of the matters in issue. We do not thereforepropose to burden our judgment with an examination of the mass of English casescited at the bar, for in our opinion, the decision of the case before us mustdepend exclusively on the construction of Act I of 1894, which is sui generisin its character and which vests the Local Government with absolute discretionin the matter of acquisition, irrespective of any consideration of thewillingness or unwillingness of the owner to part with his property. Nor do wethink it necessary to examine the provisions of the earlier Acts in order toapprehend the meaning or to construe the law now in force.

53. An appeal has been made to the principles of naturaljustice that a person whose property is going to be taken should be allowed ahearing in the matter. When the provisions of the law are clear, it seems to usit is not competent to Courts of Justice to eater into questions of"natural justice." If, however, it is open to us to express anopinion, we think that, having regard to the economic and social conditions ofthe country, the provision that the Government should be the sole judge of whatis likely to prove useful to the public is both expedient and reasonable. It iseasy to conceive the paralysis which may overtake the Administration, if wewere to give effect to the present contention.

54. There is no definition of "a public purpose"in the Act, nor any limitation regarding what is likely to prove useful to thepublic. For obvious reasons both matters are left to the absolute discretion ofthe Local Government; and it seems to us it is not competent to this Court toassume to itself the jurisdiction to impose restrictions on this discretion byholding that at an enquiry under Section 40, the person whose land is intendedto be acquired should have an opportunity to appear and object--a course whollycontrary to the policy of the Act.

55. In our opinion Section 40 constitutes the Government, asthe custodian of the public interests, the sole judge of the two facts mentionedtherein, namely, whether the land is required for the construction of some workand secondly, whether that work is likely to prove useful to the public. Theonly other person concerned in the matter is the Company which makes theapplication for the land. The officer deputed to make the enquiry is to givethat Company notice and if necessary, to take evidence from the Companyregarding the questions on which he is to report. Sub-section 3, in empoweringthe said officer to summon witnesses, etc., contemplates only the possibilityof his having to take evidence on behalf of the party, who is principallyconcerned in that particular enquiry, namely, the Company. The time and placewhich are appointed are for the purpose of enabling the Company to produce itsevidence or to place materials for the satisfaction of the officer. Nowhere inthe Act is there any provision that the owner of the land should appear beforethe officer deputed under Section 40, or at all, until the service upon him ofthe notice under Section 9. Had the intention of the Legislature been that theowner of the property should be required to be present at the enquiry underSection 40, we have no doubt that it would have expressly provided for thatpurpose. In this case we find as a fact that an enquiry was held by an officerdeputed for the purpose by the Board, at the instance of the Government. Somequestion was raised that, if the enquiry had been entrusted to anybody else, itwould have been perhaps more satisfactory. We consider that wholly immaterial.The Act requires that the enquiry should be held by such officer as the LocalGovernment shall appoint. It is clear, therefore, that the enquiry must be bysome officer of the Government itself. In the second place, we find that in thiscase an officer was appointed by the authority to which the Local Governmentdelegated its power of appointment. It is not open to us, as we apprehend thelaw, to discuss either his qualifications or the sufficiency of the enquiryheld by him. In our opinion the Local Government is the sole judge of thosematters. So long as it is satisfied upon the two matters which are madeconditions precedent to its according its consent to the acquisition of theland, this Court in our judgment is not competent to question the validity ofthe proceeding under Section 40.

56. In this view we overrule the objection urged against Mr.Carlyles enquiry. Section 41 provides that after the enquiry directed bySection 40 the officer in question shall report to the Local Government theresult of such enquiry; and if the Local Government is satisfied that theproposed acquisition is needed for the construction of a work and that suchwork is likely to prove useful to the public, it shall, subject to such rulesas the Governor-General of India in Council may, from time to time, prescribein this behalf, require the Company to enter into an agreement with theSecretary of State for India in Council providing, to the satisfaction of theLocal Government, for the several matters which are set forth specifically inthat section.

57. A report, as we have already seen, was submitted by Mr.Carlyle embodying the result of his enquiry. Upon that report the LocalGovernment was in fact satisfied that the proposed acquisition was needed forthe construction of the work and that such work was likely to prove useful tothe public. We find also that after being so satisfied, it called upon the Bankto enter into an agreement as required under Section 41.

58. It is contended on behalf of the Plaintiff that theconsent required under Section 39 should have been given after the agreementhad been executed and that such consent should have been notified by aresolution in the Gazette. We do not understand upon what data thesecontentions are based. There is no provision in the Act itself that the consentshould be notified in the form or in the manner contended for by learnedCounsel appearing for the Plaintiff, nor do the provisions of the sectionindicate that the consent should be express and must be formulated in terms.What the section requires is that, upon being satisfied of the facts to whichreference is made in Section 40, the Government should call upon the Company toenter into an agreement. That was done in the present case. As a matter of factby letter No. 2823 the Government expressly gave its consent to the acquisitionof the land and the application of the provisions of the Act.

59. It is contended further that the agreement is illusory,(1) on the ground that there is no substantial provision regarding the user bythe public under Clause 5 of Section 41(2) because the arrangement by which theBank of Bengal carries on the work of the Government is terminable at the endof ten years from 1898. Under the provisions of Section 42 the agreemententered into between the Secretary of State and the Bank was published in thelocal Gazette and the Gazette of India and by virtue of the enactment it hasbecome a part and parcel of the law. Section 41 makes the Government the solejudge of the manner in which the public are to have the use of the land takenup. The agreement provides that the public, subject to the Act constituting andthe bye-laws regulating the Bank, shall be entitled to the said building orbuildings in relation to the said Government business so far as the same may beutilized by the Bank for the purposes of such business. We are asked to holdthat the latter part of Clause 5 renders the whole provision nugatory. We arenot prepared to accept this view. In the first place, the Local Government,which is vested with absolute discretion in this matter and which is the salecustodian of the public interest in this country, made that provision inrelation to the transaction of the Government business by the Bank in theproposed new buildings. The acquisition was needed for the purpose ofconstructing new buildings to afford better accommodation for the transactionof the public business. The rights of the public generally are dependent uponthe Government business and the Government has considered the conditionstherein inserted as sufficiently safeguarding its interests. This Court, in ouropinion, has no power to enter upon a consideration of the question ,how farthat provision sufficiently safeguards the interests of the Government or ofthe public, of which it is the custodian.

60. As regards the second point, we think that it is equallyuntenable. "When the lands are acquired under the provisions of the LandAcquisition Act, save and except under Part VI, they are acquired permanentlyand the compensation which is paid to the owner is awarded on the basis of itsabsolute value. The Act nowhere says that, whether land is acquired for apublic purpose or for a Company, it should be for a permanent public purpose orfor a permanent Company. If the contention of the Plaintiff is given effect to,it would render it impossible for the Government to acquire lands for anyCompany under any circumstance, because there is always the possibility of theCompany being wound up. The question whether the contract between Governmentand the Bank of Bengalis terminable at the end of ten years is a matter withwhich, in our opinion, the Plaintiff has no concern, for he obtains theabsolute value of the property and is not concerned any further with anyquestion relating to the permanency or otherwise of the purpose for which it isacquired.

61. It has also been urged on the Plaintiffs behalf thatthe declaration issued by the Local Government was not in compliance with theAct.

62. If we have fully apprehended the argument on the point,the contention seems to be this: Section 6 provides that "whenever itappears to the Local Government that any particular land is needed for a publicpurpose or for a Company, a declaration should be made to that effect."The words "public purpose" and "Company" are useddisjunctively and if the land is required for a Company, it must be so statedwithout any reference to a public purpose. In the present case the declarationis in these terms:

Whereas it appears to the Lieutenant-Governor of Bengal thatland is required to be taken by Government at the expense of the Bank of Bengalfor a public purpose, viz, for the extension of the Bank of Bengalspremises," it is therefore bad. In our opinion this argument proceeds upona fallacy. The law requires that when any particular land is required for thetwo purposes g for which the Local Government is authorized by the Legislatureto put the Act into operation, a declaration to that effect should bepreviously made. It does not require that the intention of Government should bedeclared or notified in any particular form; nor has it been pointed out to usthat any form has been presented by the Act or the rules framed under the Actfor such declarations. The use of the words "to that effect" indicateto our mind that it may be made in any form so long as the object is patent. Inthe present case it is clear that the purpose for which the land was needed wasfor the extension of the premises of the Bank of Bengal, a company within themeaning of the Act. There is no vagueness in the description or the object ofthe declaration.

63. It maybe that the use of the words "publicpurpose" was superfluous, but upon a careful consideration we are ofopinion that there is no reason for holding that the declaration is not incompliance with the Act.

64. Section 6 further provides that "the saiddeclaration shall be conclusive evidence that the land is needed for a publicpurpose or for a Company." of course if the requirements of Part VII, towhich the application of Section 6 and the subsequent section is subjected, arenot complied with, the declaration will not have that effect. But in this casewe have already found that the provisions of Part VII were complied with beforethe declaration was made and issued. It seems to us, therefore, that thePlaintiff is not entitled to question the validity of the declaration, nor isit open to this Court to enter upon its determination.

65. There can be no doubt upon the materials on the record,that after the declaration the notices required under the Act were duly issued.The Plaintiff appeared before the Land Acquisition Collector pursuant to suchnotices. His objections were enquired into and an award was made in the termsof Section 11. The Plaintiff contends that the whole proceeding before theCollector was bad and that the award is illusory, "a fraud upon and anevasion of the Act," and consequently of no effect. The grounds upon whichthis contention is based are of a somewhat peculiar character. First, it issaid that the Land Acquisition Collector is a judicial officer and as such, hewas bound to base his judgment as to the value of the property upon theevidence given before him in open Court in the presence of the parties that hewas not entitled to refer to the preliminary estimate prepared by P.C. Mitteror the statements and documents forwarded to him by the Banks solicitor; thathe acted improperly in making references to his superior officer and allowinghimself to be practically guided by that officer in his decision and that he,like the Government was in concert or collusion with the Banks solicitors. Insupport of this last allegation special reference is made to exhibit P, aletter from Gunga Churn Chatterjee, the Land Acquisition Collector, to the Bankof Bengal, in which, after informing them of the day fixed for the hearing ofthe Land Acquisition case, he states as follows: "As the compensation tobe awarded is payable by the Bank of Bengal, I beg that you will, if you thinkfit, depute an agent of yours to watch the proceedings on behalf of the Bankand to contest any unreasonable claim that may be made on behalf of the partiesinterested." This, according to the Plaintiff, shows the"illusory" character of the proceedings.

66. We may observe here that whilst Mr. Pugh, in answer toquestions put by the Court, repudiated, in express terms, any charge of"personal" fraud against the Land Acquisition Collector or the otherofficers of Government concerned in the matter, the cross-examination of theDefendants witnesses by his learned junior conveyed distinct suggestions ofcollusion and bad faith on their part.

67. Under Section 50, Sub-section 2 the Company concerned isentitled to appear in any proceeding before a Collector or Court and to adduceevidence "for the purpose of determining the amount of compensation."The reason of this is obvious; for the Company has to pay the compensation. Togive effect to this provision of the law, the Board of Revenue has framed arule (p. 36, Rule 21), which is in these terms: "When he (the Collector),issues notices on the persons interested ... he shall at the lame time informthe Municipal body, Railway, or any other Company, who have under Section 50(1)to defray the charges of the Land Acquisition, of the day on which the enquiryunder Section 11 is to be held, or to which it may be postponed and to givesuch body or company an opportunity of contesting the claims of the claimantsto compensation and of adducing evidence on their part as to the proper amountpayable before he make his award."

68. Babu Gunga Churn Chatterjee has stated in his evidencethat it was under this rule that he gave the Bank the notice to which referencehas just been made. It appears to us that in calling upon the Bank, if itthought fit, to depute a person "to contest any unreasonable claim,"he acted in accordance with the law and the rule framed by the Board to giveeffect to the same and that the suggestion of improper motive is whollyunfounded.

69. The next question we have to consider is whether, as thePlaintiff contends, the Land Acquisition Collector is a judicial officer. He isa gazetted officer of Government appointed for the purpose of acquiring landfor the State. It is in evidence that Land Acquisition proceedings are underthe control and in the charge of the Board of Revenue as a department ofGovernment. The Board has accordingly issued certain general rules (among themthe one referred to above) for the guidance of the officers to whom the work ofacquisition is, from time to time, entrusted. If those rules or instructionsare in contravention of the express provisions of the law, they cannot make anact done by such officers valid. For example, if the rules were to say that noenquiry need be held under Part VII, or that the formalities prescribed, shouldbe ignored or treated as superfluous, any proceeding taken pursuant to that directionwould be invalid. But where the rules are in furtherance of the provisions ofthe Act, in order to better enable the officers of Government to carry out therequirements of the law, it seems to us no question of ultra vires arises. Itis admitted that if, in the case before us, the officer concerned acted inaccordance with the rules prescribed by the Board, that would be evidence ofhis bona fides. On that narrow ground alone the Manual containing the rulestendered by the Advocate-General was admissible in evidence. It has beenaccordingly admitted and marked exhibit 10.

70. It must be noted that the Land Acquisition Collectorcannot take any action under the Act, until he has received the directions ofthe Local Government or some officer authorized by the Local. Government inthat behalf (Section 7).

71. In this case Babu Gunga Churn Chatterjee receivedinstructions from the Secretary to the Board of Revenue (Mr. Carlyle), to makenecessary arrangements for starting proceedings for the acquisition of the land(exhibit I).

72. After receipt of the directions provided for in Section7 the Collector has to have the land measured and a plan prepared (Section 8).He has then to issue notices to all persons interested to state the nature oftheir respective interests and the amount and particulars of their claims tocompensation in respect of such interest and their objections to themeasurement, if any [Section 9(2)]. He is also authorized to require any personto make or deliver to him, at a time and place mentioned, the name of everyother person possessing any interest in the land. Any person disobeying therequisition of the Collector makes himself liable under Sections 175 and 176 ofthe Indian Penal Code (Section 10). The Collector has then to enquire into theobjections of the persons interested regarding the measurement and the value ofthe land and also into the respective interests of the persons claiming thecompensation and then to make an award regarding the following particulars:

First, the true area of the land; secondly, the compensationwhich in his opinion should be allowed for the land and thirdly, theapportionment of the said compensation among all other persons who are known orbelieved to be interested in the land of whom, or of whose claims, he hasinformation whether or not they have respectively appeared before him (Section11). The award so made has to be filed in the Collectors office and he has togive immediate notice of the same to all the persons interested (Section 12).For the purpose of his enquiries the Collector is empowered to summon andenforce the attendance of witnesses, including the parties interested or any ofthem and to compel the production of documents by the same means (and so far asmay be) as is provided in the case of a Civil Court under the Code of CivilProcedure Section 14.

73. Although he has the power of summoning witnesses m thesame manner as is provided in the case of a Civil Court, there is no provisionthat any person making a false statement before him would make himself liablefor giving false testimony. So far as we can see, the only liability is fordisobedience of orders. Throughout the proceedings the Collector acts as theagent of Government for the purposes of acquisition, clothed with certainpowers to require the attendance of persons to make statements relevant to thematters, which he has to enquire into. He is, in no sense" of the term, ajudicial officer, nor is the proceeding before him a judicial proceeding. Inthis view we are supported by the decision of this Court in Durga Das Rukhit v.Queen-Empress I.L.R. (1900) Cal. 820. The award which he makes does not possessany finality so far as the persons interested are concerned, for under Section18 any person interested, who has not accepted the award, may, within a certaintime, by written application to the Collector, require a reference of thematter for the determination of the Court. This shows that so far as theCollector is concerned, he is not a Court. In the present case the Plaintiffhas applied for and obtained a reference. The Government or the Company atwhose instance the land is being taken up is not entitled to demand a reference(Section 50, proviso). The reason of this is plain. The Collector acts as the agentof the Government or of the Company for which the Government takes up the landand they are accordingly bound by the award of their agent. But the Government,except in the special case provided for in Section 36, is at liberty towithdraw from the acquisition of any land, of which possession has not beentaken (Section 48).

74. The circumstances under which the Government maywithdraw are explained by the Board in their Rule 19. This rule, after statingthat too great care cannot be taken in making the examination, proceeds to say"the same course should be followed, if at any time before an award orreference to the Civil Court the Collector has reason to believe that the costof acquisition will considerably exceed the estimate." Therefore until thereference to the Civil Court, it is open to the Local Government or the Companyto withdraw from the acquisition and the award has no binding effect. Shouldthe Government persist in going on with the acquisition, the amount of thecompensation fixed by the Collector is binding upon the Government, but not onthe persons interested, for under no circumstance can the Civil Court awardless than the amount fixed by the Collector. These considerations show to usthat the award of the Collector is in nonsense a judicial award. A great dealhas been attempted to be made out of the fact that in the Act the term"award" has been used both in the case of the determination by theCollector as also by the Civil Court. Any inference from that circumstance appearsto us to be fallacious. The meaning to be attached to the word"award" under Section 11 and its nature and effect must be arrived atnot from the mere use of the same expression in both instances, but from theexamination of the provisions of the law relating to the Collectorsproceedings culminating in the award. The considerations to which we havereferred satisfy us that the Collector acts in the matter of the enquiry andthe valuation of the land only as an agent of the Government and not as ajudicial officer; and that consequently, although the Government or the Companyat whose instance the Government is acquiring the land is bound by hisproceedings, the persons interested are not concluded by his finding regardingthe value of the land or the compensation to be awarded. His enquiry and hisvaluation are departmental in their character for the purpose of enabling theGovernment to make a tender through him to the persons interested. Such tenderonce made is binding on the Government and the Government cannot require thatthe value fixed by its own officer acting on its behalf should be open toquestion at its own instance before the Civil Court.

75. But it is contended that, whether the Collector was ajudicial officer or not and whether the proceeding before him was a judicialproceeding or not, he was not entitled to base his determination upon evidenceother than that produced before him in the presence of parties. This argumentagain appears to us to beg the question. If the proceedings were judicial intheir character, the Collector in arriving at his conclusion would, no doubt,be confined to such materials. But if he was acting as a mere, departmentalofficer or an agent of the Government for the purpose of ascertaining the valueof the property to enable a tender to be made, it would be open to him toconsider all available information on the point. Babu Gunga Churn Chatterjeehas sworn that he took into consideration the sworn testimony and the exhibitsplaced before him, but "could not attach much importance to theevidence." If his determination or conclusion is wrong, it can bequestioned before the Civil Court," whose duty it is," as the learnedJudges point out in the case of Durga Das Rukhit v. Queen-Empress I.L.R. (1900)Cal. 820, "to settle the matter in dispute judicially." But we feelbound to observe that, in view of the evidence in this Court, which clearlyindicates that immediately on learning of the Banks desire to acquire theland, the Plaintiffs agent (Mr. Cohen) tried to run up the price, We are notprepared to hold that Gunga Churn Chatterjee acted improperly in discountingthe materials on which the Plaintiffs valuation was based. The entry of the27th of August 1900 in the day-book of Messrs. Gregory and Jones (as appearingin their bill of costs, exhibits M.M.M.) and the statements of Mr. Cohen,coupled with his prevarications, leave no doubt in our mind that on beingapprised of the Banks necessity for increased accommodation, he set to work toshow "the best result," as his attorney (Mr. Gregory) calls it. Mr.Gregory proceeded to add "by result I mean the best return for the supportof my claim." Asked "before the Collector," he answered"yes, before the person appointed." The correctness of Gunga ChurnChatterjees valuation is a matter for the consideration of the Court beforewhich the reference is pending; the propriety of his conduct in discarding thePlaintiffs evidence and forming his opinion on other materials, the onlyquestion on which we can express an opinion in this case is, in our judgment,under the circumstances mentioned, not open to any valid criticism. But hisconduct is attacked net only on the ground indicated above, but on severalothers set forth more or less specifically in the plaint. It is urged that hehad a sanctioned estimate before him and that therefore his own"award" was "illusory;" that he was in communication withhis Collector and acted in obedience to orders from the superior authoritiesSimilar suggestions are made on the basis of letters addressed to him by theBanks solicitors or by him to them in the course of the proceedings and it iscontended that his "award" is a fraud upon and a colorable evasion ofthe Act. To our mind this contention is wholly groundless. As the determinationof the officer is conclusive against the Local Government or the Company atwhose instance the Act is put in force, the Board, which has charge of, theLand Acquisition Department, has issued the general instructions to whichreference has already been made. The rules, in force in 1900 are contained inthe Manual published under the Boards authority (exhibit 10). They containminute directions regarding the mode in which the work is to be done by theLand Acquisition Collector, how the measurement should be made, estimatesprepared and so forth. That the proceedings taken under the Act are subject to" the departmental rules" in respect to estimate, &c., appearsfrom the rules framed by the Government of India under Act I of 1894 andnotified by its Resolution No. 2209A, dated the 10th of May 1695 (Appendix XIIof the Manual").

76. The Boards instructions require, in the first instance,a preliminary estimate (Rule 10). That estimate has to be sanctioned by theGovernment when issuing the declaration (Rule 15). As a safeguard againstmistake or improper conduct on the part of the officer appointed to acquire theland, the rules provide that when, the proceedings are conducted by anAssistant or Deputy Collector, if the intended award be within "the sanctionedestimate," he may (subject to certain exceptions) make the award withoutfurther reference. But if the intended award be beyond the amount of thesanctioned estimate, or if the amount of the compensation, which it is proposedto tender, exceeds in any one case Rs. 10,000, he must consult the Collector ofthe district demi-officially and will make his final award according to theinstructions received from that officer--in our opinion a most wholesomeprovision. In the present case the preliminary estimate was sanctioned byexhibit N. As the amount of compensation proposed to be tendered exceeded Rs.10,000, the Deputy Collector, Gunga Churn Chatterjee, was bound under the rulesto refer the matter to the Collector. In taking the sanctioned estimate intoconsideration and in communicating with the Collector, he acted in conformitywith the general rules issued for the guidance of Land Acquisition Collectors.His determination was not a judicial act he was acting merely as an agent ofthe Government to ascertain the value and to make a tender. He was, therefore,not only competent, but bound to comply with the rules.

77. Reference has also been made to his letter (exhibit T)dated the 14th of January 1901, addressed to Messrs. Morgan and Co., askingthem, if the matter should go into Court, whether they would conduct the caseor leave him to do so. If we have rightly apprehended learned Counsel, for thearguments on this branch of the case were not by any means clear, thesuggestion is that this also shows collusion. Again, it seems to us there issome mis-conception. When a reference is made to the Civil Court, the claimantis to be regarded as the Plaintiff and the Government as Defendant. This is theinvariable practice and the duty of the Collector in such cases is pointed outin clear terms in Rule 45, which provides that when a reference to the Courthas been made by the Collector under Section 18, on the ground of an objectionto the measurement of the land or to the amount of the compensation * * *, theCollector should defend the case exactly as he would a Government suit. Theclaimant in such cases is to be regarded as the Plaintiff and the Government asDefendant; and it is the duty of the Collector to see that evidence isforthcoming to show the fairness of the amount, which he has given ascompensation. The Collector must remember that the Court will decide on theevidence before it what amount of compensation should be given and he must,therefore, be prepared with reliable evidence at the trial." In thepresent case the Bank was to pay the compensation and in our opinion, it wasonly right and proper that Gunga Churn Chatterjee should consult itssolicitors, whether they would defend the action or leave it to him.

78. It is not necessary in our judgment to dwell on thesuggestion of collusion based on the correspondence between Messrs. Morgan andCo. and the Government Solicitor about a copy of a draft declaration, for wehardly think it could have been seriously advanced. Under Rule 10 the Bank hadto supply the particulars to be embodied in the declaration and its solicitorsnaturally applied to the Government Solicitor for a form.

79. We have been asked to treat the settlement of Messrs.Sanderson and Co.s claim at a higher figure than the amount allowed by theLand Acquisition Collector as one of the indications of the illusory characterof his award. With regard to this, we have only to observe that it was open tothe Bank to settle the claim for any amount it liked, but it does not show thatthe Collectors award was erroneous--much less "illusory." If it isan element for consideration in determining the compensation, the Court dealingwith the reference will give it such weight as it deserves.

80. Great reliance has been placed on the case of MaharajaLuchmeswar Singh v. The Chairman of the Darbhanga Municipality (1889) L.R. 17IndAp 90. The facts of that case, in our opinion, have not the remotest analogyto those of the one before us, as will be seen from the following summary. TheCollector of Darbhanga wanted a piece of land for the use of the Municipality.At that time the owner was a minor under the Court of Wards and he remained aminor for several years after. The Court of Wards for the district of Darbhangawas the Commissioner of Patna acting under the Board of Revenue and therepresentative of the Commissioner in Darbhanga was the Collector for the timebeing of Darbhanga, who was also ex-officio Chairman of the DarbhangaMunicipality. The Collector asked the Manager appointed by the Court of Wardsof the minors estate to consent to the sale of the land. The Manager repliedthat he had no objection to present the land in question to the town, butdoubted his power to do so and requested the matter be submitted to the Courtof Wards for orders. The Collector thereupon appears to have written to theCommissioner, who represented the Court of Wards. In his reply this officer,acknowledging the Collectors letter "regarding the land belonging to theDarbhanga Raj made over to the Municipality free of cost for the constructionof a bathing ghat," said as follows:

As regards the procedure to be observed in the case, youshould offer the Manager one rupee compensation and allow the Manager to referthe point to the Board of Revenue with whose sanction the award can undoubtedlybe accepted and acceptance of the award will act as a valid conveyance:

The Collector thereupon offered the Manager one rupee ascompensation for the land in question. The Manager asked the sanction of theCourt of Wards to accept the offer. Ultimately the Board of Revenue as theCourt of Wards gave its sanction and the Manager accepted the rupee paid by theCollector and gave a receipt for it, describing it as a nominal compensationfor the Raj land taken up by the Municipality. After attaining majority theMaharajah brought a suit to recover possession of the land. The first Courtmade a decree in his favour, which was reversed by the High Court. On appeal tothe Privy Council their Lordships, with reference to the Commissioners letter,said as follows: - "Their Lordships feel compelled to state their opinionthat the direction or suggestion to offer one rupee compensation was acolorable way of doing indirectly what it was seen could not be done directly,viz., the guardian making a present to the town of the land of his ward."Dealing with the duties of the Collector under the Land Acquisition Act, theypoint out that one of the matters he was to consider was the market value atthe time of awarding compensation of the land and they observe that "it isobvious that the offer of one rupee was not in accordance with the duty of theCollector under these sections and it would be altogether wrong to treat onerupee as the amount of compensation determined under Section 13" (of theold Act). And they go on to say "although the Court of Wards had no powerto alienate the land for the purpose for which it was required possession mighthave been lawfully taken of it, if the provisions of the Land Acquisition Acthad been complied with. But they were not. The Collector made no enquiry intothe value of the land. He was the Chairman of the Municipality and his soleobject appears to have been to benefit the town, forgetting that, as therepresentative of the Court of Wards, it was his duty to protect the interestsof the minor and to see that the provisions of the Act were compliedwith." And further on their Lordships add: The offer and acceptance of onerupee was a colourable attempt to obtain a title under the Land Acquisition Actwithout paying for the land and their Lordships have felt some surprise at thedirection which originated it having come from the Commissioner." And theypointed out that there was no reference, as the High Court thought, of theminors claim to the Civil Court under the Act.

81. The suggestion that there is any analogy between thatcase and the present is, in our opinion, of no force, for, as we have alreadystated, we consider that the enquiry by the Collector in this case wasconducted and the award made in accordance withhe Act and was therefore not anevasion of the law.

82. For the foregoing reasons we are of opinion that neitherthe enquiry held by Mr. Carlyle nor the proceedings before the Land AcquisitionCollector are invalid as contended for by the Plaintiff and that this suitshould be dismissed.

83. A large mass of correspondence has been put in on behalfof the Plaintiff which took place between the solicitors on the two sides afterthe institution of the suit. These letters are relevant only to the question ofcosts. The Plaintiffs attorneys called upon the solicitors for the Defendantsto admit the documents disclosed in their affidavit, in order to prepare abrief for the use of Court. The latter expressed their inability to comply withthe request. We cannot help thinking the Defendants attorneys are to blame innot endeavouring to meet the request of the Plaintiffs attorneys evenpartially. They could easily have obtained advice on the relevancy of thedocuments. As it was, the best part of a day was lost in wrangling over them.Had the matter rested there, we should have certainly disallowed the Defendantsat least one days costs. But so much time has been occupied on behalf of thePlaintiff in repeated attempts to introduce irrelevant documents on the recordand in irrelevant cross-examination that we think we should not depart in thiscase from the usual rule, viz., that costs should follow the result.

84. The suit is accordingly dismissed with costs.

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Ezra vs. TheSecretary of State and Ors. (22.08.1902- CALHC)