PROVINCE OF BENGAL Vs. MAULVI MDYUSUF

JUDGEMENT

(1.) This appeal is directed against the judgment of the Special Land Acquisition Judge passed on a reference made under Section 18, Land Acquisition Act. The question in the appeal is whether the whole of cadastral plot No. 3127 of mouza Baghail or only the northern portion thereof as depicted in the plan referred to in the declaration made under Section 6 of the said Act has been acquired. The award made by the Collector under the Act is in respect of the whole of the said plot, but that fact is not of great importance, for, it is admitted by both parties, and that is also the law, that the Collector cannot acquire land which is not covered by the declaration under Section 6 of the Act, as published in the Official Gazette : Gajendra Sahu V/s. Secretary of State ( 08) 8 C.L.J. 39 and Harish Chandra Neogy V/s. Secretary of State ( 07) 11 C.W.N. 875. The question involved in this appeal therefore depends upon the construction of the declaration made under Section 6 of the Act. That declaration as published in the Calcutta Gazette is Ex. 5 (11-26). It was published on 15 October 1938. The material portion of that declaration runs as follows: It is hereby declared that for the above purpose a piece of land comprising cadastral plot No. 3127 and measuring more or less 55 of an acre is required within the aforesaid village of Baghail.... A plan of the land may be inspected in the office of the Collector of Pabna.

(2.) It is admitted by the claimant that cadastral plot No. 3127 covers the whole of his tenancy which was created in his favour on 24 July 1920 when he executed the kabuliat Ex. I in favour of his landlord, that he is in possession of the whole of that plot and that the boundaries of his tenanted land have not changed since the date when he took settlement. The southern boundary, which is the material boundary, of that plot is admitted to be a dahar or water channel, which is a fixed land mark. The area of plot No. 3127 as recorded in the settlement khatian is 55 acres and as measured by the commissioner is slightly in excess of that area. The plan to which reference was made in the declaration Ex. 5, however, does not comprise the whole of cadastral plot No. 3127. It excludes a small strip, the southern part of the said plot. The dispute between the parties is in respect of this small strip. That dispute depends solely upon the question as to whether by the terms of the declaration, Ex. 5, the whole of cadastral plot No. 3127 was intended to be acquired or the acquisition was to be on the basis of the plan which was then lying in the office of the Collector, to which reference was made in that declaration. The declaration follows closely the provisions of Section 6, Land Acquisition Act. That section requires a declaration to be made in respect of the particular land proposed to be acquired, and where a plan had already been made of the land, the plan is not to be published with the declaration in the official gazette but only information is to be given by that publication as to the place where the said plan can be inspected by anyone desirous of inspecting the same. In cases of acquisition, ordinarily, the plan agrees with the description of the property intended to be acquired as given in the body of the declaration but in this case the plan does not include the whole of dag No. 3127. If the plan be not taken into account, the meaning of the declaration would be unambiguous. What was proposed to be acquired was "a piece of land comprising cadastral plot No. 3127 and measuring more or less 55 of an acre". The area by itself is an indeterminate factor, for that area was approximately stated. The word "comprising" however makes the position clear. It means "enveloping," "including the whole". The text of the declaration, Ex. 5 is that the whole of cadastral plot No. 3127 was proposed for acquisition. The question therefore is whether the plan has a restricting effect or whether it has the effect of only elucidating the text. In the former case the effect would be that only so much of plot No. 3127 as is covered by the plan, and no more, would be affected by the declaration under Section 6 of the Act, and that much only could be legally acquired. In the latter contingency the plan would have to be disregarded, and the legality of the acquisition would have to be judged by the text of the declaration, which in this case includes the whole of cadastral plot No. 3127 of mouza Baghail.

(3.) The learned advocate for the respondent Mr. Amaresh Chandra Roy, who has shown great industry, learning and ability in arguing the ease, for which we expressed our appreciation at the close of his argument, has placed before us a number of decisions bearing upon the construction of deeds, mostly leases, and we have ourselves looked into many decisions not cited at the Bar. In our judgment the principles laid down in those decisions have an important bearing on the questions before us. We accordingly proceed to discuss the principles formulated in those decisions. The first and fundamental principle is the principle of "falsa demonstratio non nocet." That principle was stated in Roe V/s. Vernon & Vyse (1804) 5 East. 51 in the following language: If there be a description of the property sufficient to render certain what is intended, the addition of a wrong name, or of an erroneous statement as to quantity, occupancy, locality, or an erroneous enumeration of particulars will have no effect.