Misi Lal vs Punjab State and Others

Grover, J.—This appeal arises out of a suit filed by Misri Lal plaintiff against the Punjab State and others for a permanent injunction restraining the defendants from taking possession of the land and property mentioned in paragraphs 1 and 2 of the plaint. The plaintiff claims to be the lessee of the suit land where, according to him, he is carrying on his business by running an electric wooden saw mill and chaff-cutting machine. It is urged that at the instance of defendant No. 3, the Printers House Private Limited, the Government issued two notifications on 28th March, 1961. By the first notification which was issued u/s 4 of the Land Acquisition Act, 1894 (hereinafter called the Act), the land was specified which was sought to be acquired at public expense for a public purpose. It was also stated that action would be taken on the grounds of urgency u/s 17 of the Act and provisions of section 5-A would not apply in regard to this acquisition. By the second notification, a declaration was made under the provisions of section 6 of the Act. u/s 7, the Sub-Divisional Officer-cum-Land Acquisition Officer, Palwal, District Gurgaon, was directed to take order for the acquisition of the said land. It was further stated-

In view of the urgency of the acquisition, the Governor of Punjab, in exercise of the powers u/s 17(2) (c) of the said Act, is further pleased to direct that the Sub-Divisional Officer-cum-Land Acquisition Officer, Palwal, district Gurgaon, shall proceed to take possession of land herein specified in accordance therewith.

On a previous occasion the plaintiff moved this Court under Article 266 of the Constitution. That petition (Civil Writ No. 709 of 1961) came up before me and was disposed of on 16th August, 1962. In view of the disputed questions of fact which had been raised, I considered that it was not a fit case in which there could be any interference under Article 226 and observed that such matters could be more appropriately decided in a suit. The plaintiff then filed the suit out of which the present appeal has arisen.

It is unnecessary to mention all the issues because the controversy now centers round issues 5 and 6. They were framed in the following terms:

Whether the notifications under sections 4 and 6, read with section 17, of the Land Acquisition Act were illegal and ultra vires.

Could not the Government fake possession of the land in suit u/s 17 of the Land Acquisition Act?

The Courts below have found against the plaintiff on both the issues. It is somewhat unfortunate that the learned Senior Sub-Judge did not give any proper decision on these issues because he was of the opinion that proper pleas had not been raised in the plaint relating to legality of acquisition proceedings. As regards the decision of the trial Court on the aforesaid issues, all that the learned Judge said was that a perusal of the judgment of the lower Court would show that all aspects had been taken into consideration by it and those findings were affirmed. It may be observed that this is not the correct and proper manner of dealing with the questions which were raised in the aforesaid issues on which the trial Court had given a decision but which were dealt with in a most perfunctory manner by the learned Senior Sub Judge who did not apply his mind to the contentions of the parties and the matters which called for determination under those issues.

Mr. Sarin, who appears for the plaintiff-appellant, has drawn my attention to what is stated in paragraphs, 7 and 10 of the plaint. It is true that in paragraph 7 the grounds which were raised in the writ petition are mentioned and in paragraph 10 it is stated that a notice u/s 80 of the CPC was served on the Punjab Government. It is admitted that in this notice all the grounds which have been mentioned in paragraph 7 were stated. It appears that the plaint has not been properly drafted and it is somewhat surprising that an Advocate of the standing of Shri Tara Chand Jain, who is said to be a fairly senior counsel, should have omitted to make the grounds which were taken in paragraph 7 as pleas in the plaint. However, when issues 5 and 6 were framed, no objection was raised on behalf of the defendants that those issues did not arise out of the pleadings. The parties went to trial knowing full well what the points in controversy were and it was too late in the day for the defendants or the learned Senior Sub Judge to turn round and say that no such pleas had been raised in the plaint after the suit had been tried and disposed of by the trial Court who had dealt with those issues at length.

The short submission of Mr. Sarin is that the present case stands concluded by a Bench decision of this Court in Murari Lal v. The State of Punjab (1964) 06 P L. R. 857. In the present case, the second notification. Exhibit. P. II, leaves no room for doubt that the Land Acquisition Officer was directed to take possession of the land immediately in view of the urgency of the acquisition and this was done in exercise of the powers u/s 17 (2) (c) of the Act which was added by Punjab Act 47 of 1956 in its application to the State of Punjab. Sub-section (2) of section 17 runs as follows:

(2) In the following cases, that is to say- (a) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a riverside or ghat, station or of providing convenient connection with or access to any such station;

(b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building or other structure in any village for the common use of the inhabitants of such village, or any godown for any society registered under the Co-operative Societies Act, 1912 (Act II of 1912), or any dwelling-house for the poor, or the construction of labour colonies or houses for any other class of people under a Government-sponsored Housing Scheme, or any irrigation tank, irrigation or drainage channel, or any well, or any public road;

(c) Whenever land is required for a public purpose which in the opinion of the appropriate Government is of urgent importance; the Collector may, immediately after publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances;

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In Murari Lal''s case1, the Bench had to consider whether the acquisition which had been made for the construction of a "Text Books Sales Depot" was valid. In that notification it was stated that action for acquisition would be taken u/s 17 on the ground of urgency and the provisions of section 5-A would not apply in regard to that acquisition. Another notification was issued, as in the present case, u/s 6 of the Act, by which the Land Acquisition Collector was directed to take immediate orders for the acquisition of the land. The position which was ultimately taken on behalf of the State was that clause (c) of section 17 (2) governed the acquisition in that case. Shamsher Bahadur J., who delivered the judgment of the Bench, proceeded to examine the question whether public purpose becomes of urgent importance by the Government calling it so. According to him. the object of acquisition there was the construction of the shop for storing text books-a purpose which could not be in parity with the objects specified under clauses (a) and (b) of sub-section (2) of section 17 on the principle of ejusdem generis. He proceeded to observe -

Clause (c) of sub-section (2) introduced by the Punjab Amending Act no doubt enlarges the scope of acquisition but it has to be read ejusdem generis with clauses (a) and (b) where specific purposes for which acquisition can be made u/s 17 are definitely set out. Clearly, the construction of a depot for sale of text books is not in line with the purpose specified in clauses (a) and (b) of sub-section (2) of section 17 and it cannot be defended on the spacious ground that the Government considers the purpose to be of urgent importance.

What was stated in that case can be most appositely applied to the present case. If clause (c) has to be read ejusdem generis with the clauses which precede it, then there can be no manner of doubt that the acquisition in the present case which is meant for the setting up of a factory for the manufacture of printing machinery cannot be regarded to have anything in common with the purposes in clauses (a) and (b), and, therefore, according to the law laid down by the Bench, the decision on the issues in question must be given in favour of the plaintiff.

It may be mentioned that in Murari Lal''s case after the acquisition had been struck down by the Bench, the Government made another notification specifically mentioning sub-section (1) of section 17 in it. The Full Bench in Murari Lal Gupta v. The State of Punjab (1966) 68 P L. R. 1, (Civil Writ No. 2377 of 1964) decided on 29th September, 1965, was called upon to consider a totally different point which was whether it was open to the Court to go into the question of urgency about the purpose for which the land was sought to be acquired. As regards the Bench decision, it was distinguished on the ground that the matter which came up for examination before the Bench related to section 17(2) (c) and not to section 17 (1) the scope of which was being determined by the Full Bench. It is abundantly clear that the Full Bench never decided the correctness of the view expressed by the Division Bench that clause (c) has to be read ejusdem generis with clauses (a) and (b) of sub-section (2) of section 17. The learned counsel for the defendants respondents have contended that the Division Bench decision required reconsideration and did not lay down the law correctly It has been argued that the various principles relating to the applicability of that rule were not fully considered by the Division Bench and, therefore, that decision requires re-examination. Sitting singly I am bound by that decision and, therefore, respectfully following it I allow this appeal, set aside the decrees of the Courts below and decree the suit of the plaintiff. In the circumstances, however, I leave the parties to bear their own costs.

In view of the important nature of the legal points involved in this case I grant leave to file an appeal under clause 10 of the Letters Patent on the verbal request of the counsel for the defendants.