State of West Bengal vs Swarnalata Biswas

Chakravartti, C.J.—In my opinion, this appeal by the State of West Bengal is unarguable. Mr. Das Gupta, who appears for the State, gave us the relevant notifications and their dates in a convenient form. It would appear that the respondents are interested in only two plots of land which bear respectively the numbers 535 and 536. On the 29th of June, 1950, a notification was issued u/s 4 of the Land Development and Planning Act in respect of those two plots of land and several other plots. That was Notification No. 7268. On the same day, there was another Notification under sections 6 and 7 of the same Act and that was Notification No. 7270. Obviously the two Notifications were issued on the same date, consistently with the practice then followed by the State under which they crowded notices designed for different stages into one and the same date. For some reason which does not appear to be very clear, there was a second Notification u/s 4 of the Act on the 30th of October, 1950, covering plots Nos. 535 and 536 and certain other plots. That was Notification No. 11836. Once again there was a Notification under sections 6 and 7 of the Act in respect of the same plots issued on the same date. That Notification was No. 11838. After the Government had completed the issue of two pairs of Notifications, one on the 29th of June, and another on the 30th of October the respondent moved this Court on the 14th of March, 1951, and obtained the Rule out of which the present appeal has arisen.

It seems that the Rule set the appellant Government thinking. On the 15th of June, 1951, they issued yet another Notification by which they purported to cancel so much of Notification No. 11836 issued u/s 4 of the Act as related to plots Nos. 535 and 536 as also to certain other plots. That Notification was No. 7782. It was followed, consistently with what had happened before, by a third Notification under sections 6 and 7 which related to plots Nos. 535 and 536 as also certain other plots but which also cancelled the Notification No. 7270 issued on the 29th of June, 1950, although the date was wrongly given as the 28th of June. That Notification was No. 16038. After issuing that Notification, the appellant Government at last stopped.

Bose, J., held that the Notifications under sections 6 and 7 of the Act, issued respectively on the 29th of June, 1950, and the 30th of October, 1950, were both bad, inasmuch as they had been held simultaneously with the relevant Notifications u/s 4. He had then left with him, so far as the stage prior to the issue of the Rule was concerned, two Notifications u/s 4, one issued on the 29th of June, and the other on the 30th of October. The learned Judge held that inasmuch as the appellant Government issued a second Notification in respect of certain of the plots, the first Notification in respect of the same plots must be deemed to have been superseded and, therefore, what was surviving was only Notification No. 11836 issued on the 30th October, 1950. If nothing else had happened, the State Government would be entitled to proceed to issue a declaration under sections 6 and 7 on the basis of the Notification of the 30th of October, 1950. But they had interposed another action of their own by which they completely destroyed the effect of the Notification of the 30th of October, in so far as it related to plots Nos. 535 and 536. It will be recalled that by a Notification issued on the 15th of June. 1951, they cancelled the Notification of the 30th of October, 1950, so far as plots Nos. 535 and 536 were covered by that Notification. That being so, the learned Judge held that after the Notification of the 15th of June, 1951, there was no Notification u/s 4 left in respect of plots Nos. 535 and 536 and, therefore, the purported Notification of the 29th of November, 1951, issued under sections 6 and 7 with respect to those plots, was of no effect at all. In the learned Judge''s view the State Government had by issuing a multitude of Notifications in quick succession, succeeded in cancelling one another and had been left with nothing on which to take any intelligible stand.

Mr. Das Gupta contended that of the two Notifications u/s 4, the second one should have been held to be superflous and, therefore, the cancellation of the second Notification, in so far as it related to plots Nos. 535 and 536, could not affect the basis of the Notification under sections 6 and 7, issued on the 29th of November, 1951, because the Notification u/s 4 of the 29th of June, 1950, which covered plots Nos. 535 and 536 as well remained unaffected. In support of that contention Mr. Das Gupta referred to the decision of the Rangoon High Court in the case of Collector, Hanthawaddy v. Sulaiman Adamjee, (1) (A.I.R. 1941 Rang. 225), and the decision of Denning, J., as he then was, in the case of Lowenthal v. Vanhoute, (2) (1947) 1 K.B. 342.

I may first dispose of the cases cited. In the Rangoon case, there were two successive Notifications u/s 4 of the Land Acquisition Act and the learned Judges proceeded on the view that since the second Notification did not cancel the first, the latter remained valid and, therefore, the market value for determining the amount of compensation to be awarded had to be taken from the prices prevailing on, the date of the first Notification. The learned Judges themselves referred to the decision of the Privy Council in the case of Ma Sin v. Collector of Rangoon, (3) (L.R. 56 IndAp 210), but it is not very clear how they persuaded themselves that the decision of the Judicial Committee supported the view they were going to take. In the case before the Judicial Committee, there were no Notifications u/s 4, but two successive declarations u/s 6 and their Lordships held quite clearly by reference to the language of sub-section 1(1) of section 23 of the Land Acquisition Act that the amount of compensation to be awarded had to be determined by reference to the market value of the land at the date of the publication of that declaration u/s 6 which gave Government the right to take the land. In their Lordships'' view, since the State, after making a first declaration, had considered it necessary to make a second one, they obviously intended to proceed on the basis of the latter and, therefore, under the clear words of sub-section 1 (1) of section 23 of the Land Acquisition Act, the market value to be taken for the purposes of the compensation was to be the value prevailing at the date of the second declaration. In my view, the principle of that decision applies in its entirety to the facts of the present case. Unless Government intended to supersede the first Notification u/s 4 by a second, there was no need whatever to include the plots common to the two Notifications in the second Notification. It is perfectly clear that having come to the decision that a Notification in respect of some of the original plots and certain other plots ought to be issued, the State Government decided to write on a clean state and to issue a fresh Notification on the 30th of October, 1950. When they did so, they, to my mind, quite obviously left the Notification of the 29th of June, 1950, behind and put it on one side for all practical purposes. After the second Notification had been issued, it was only that Notification which could furnish a basis for issuing a declaration under sections 6 and 7. That it was the second Notification which was treated as the only Notification alive at the time and as the basis for the declaration under sections 6 and 7 is proved by the terms of the declaration issued on the 30th of October which proceeds not on the basis of Notification No. 7268, but on the basis of Notification No. 11836.

The decision of Denning, J., also relied on by Mr. Das Gupta, is entirely beside the point. It was a case of the usual type where, upon the landlord issuing a second notice to quit or accepting some rent after having once served a notice to quit, it is argued that he has waived his first notice and is not entitled to an order for possession on the strength of that notice. The facts of the case were that the landlord gave the tenants a written notice to quit, requiring them to vacate the premises on the expiry of the 21st of September, but upon the tenants continuing to remain on the land, a second and a formal notice to quit was given on the 4th of October, requiring the tenants to quit on the 12th of October following. The contention was that by reason of having given the second notice, the landlord had waived the first and was no longer entitled to claim possession. That argument was repelled and it was held that where once a tenancy was determined by a notice to quit it was not revived by anything short of a new tenancy being created and that in the case before the Court, the subsequent notice to quit did not create one. I am unable to see how Mr. Das Gupta can expect to derive any assistance from that decision. His argument appears to be that if the giving of a second notice does not amount to a waiver of the earlier one, the publication of the second Notification u/s 4 could not be held to have involved abandonment of the first. I think the analogy sought to be drawn by Mr. Das Gupta is a false analogy. There can be no question here of creating a new set of rights or new status by reason of giving a fresh Notification. In the facts of the present case, I do not see how it can be said that the first Notification continued to survive even after a second Notification had been issued or that the appellant Government themselves treated the first Notification as alive. If they had done so, they would not have proceeded to issue a second declaration under sections 6 and 7 on the basis of the second notice u/s 4, but would have relied on the first.

Mr. Sen, who appears on behalf of the respondent, drew our attention to a decision of the Madras High Court in the case of Akilandammal v. The Special Deputy Collector, V.T. Railway, Trichinopoly, (4) [ (1932) M.W.N. 853]. It was a case of two successive notifications u/s 4 and appears to be a case directly in point. A division Bench of the Madras High Court held in circumstances somewhat similar to those of the present case that the second notification must be taken to have superseded the first.

As I began by saying, the appeal appears to me to be unarguable. Indeed, what the appellant Government had been doing throughout the course of these proceedings is by no means clear. Apparently, they set about rectifying matters after the Rule had been issued and published two further notifications, one u/s 4 and another under sections 6 and 7. Even when issuing the latter notification on the 29th of November, 1951, they seem to have forgotten that after the notification of the 29th of June, 1950, issued under sections 6 and 7 of the Act, there had been a second notification issued on the 30th of October, following. They solemnly cancelled the Notification of the 29th of June, leaving that of the 30th of October alive so that at the time when Bose, J., disposed of the case, he had before him two notifications, under sections 6 and 7, one of the 30th of October, 1950, and another of the 29th of November, 1951.

It is quite impossible to make out from the labyrinth of notifications which the appellant Government thought fit to issue in the present case any intelligible basis in which a case in their favor can be grounded. Mr. Das Gupta has done his best, but even that best does not suffice to make out that the learned trial Judge was wrong and that his clients had been right in proceeding in the manner they had done.

The appeal is accordingly dismissed with costs--the hearing fee being assessed at three gold mohurs.

Lahiri, J.

I agree.