(1) In all these applications, which have been heard together, a common question of law arises for determination, namely, whether the notifications of the State Government under Section 4 of the Land Acquisition Act, dated the 19th January, 1961 which are annexures A and B to the applications, are legally valid.

(2) Annexure A relates to an area of 407.85 acres of land in the city of Patna in villages Mainpara, Rajapur, Dujra and Dhakanpura, and it is stated in the notification that the land is required by the Government at the expense of the Patna Improvement Trust for a public purpose, namely, for the development of residential neighourhoods to provide for housing facilities for various income groups along with various local services and modern amenities to facilitate planned growth of the city of Patna. Annexure B relates to an area of 54.04 acres located in the City of Patna, and it is stated in this notification that the land is required for the development of residential neighbourhoods to provide for housing facilities for various income groups along with various local services and modern amenities to facilitate planned growth of the city of Patna.

(3) The case of the petitioners is that the State Government has no authority to take action for acquisition of land under the provisions of the Land Acquisition Act because those provisions have been superseded by the enactment of Bihar Act 35 of 1951 which makes special provision for acquisition of land at the expense of the Improvement Trust for the improvement, development and expansion of the town and for securing to its inhabitants sanitary conditions, amenity and convenience. The contention of the petitioners is that the special procedure prescribed in Bihar Act 35 of 1951 has not been followed and, therefore, the notifications of the State Government which are annexures A and B to the applications are illegal and ultra vires and must be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution.

(4) Cause has been shown by the learned Advocate-General on behalf of respondent No. 4 and by the learned Standing Counsel on behalf of respondents 1 to 3 to whom notice of the rule was ordered to be given.

(5) On the 26th October, 1951, Bihar Act 35 of 1951 received the assent of the President. The Act is entitled "The Bihar Town Planning and Improvement Trust Act, 1951" and the preamble of the Act recites that "it is expedient to make provision for the improvement, development and expansion of towns in the State of Bihar so as to secure to their present and future inhabitants sanitary conditions amenity and convenience". Section 3 of the Act provides for the creation and incorporation of the Board of Trustees to be called "The Improvement Trust". Section 3 is to the following effect: -

"3. The duty of carrying out the provisions of this Act in any local area shall, subject to the conditions and limitations hereinafter contained, be vested in a Board to be called The (name of town) Improvement Trust, hereinafter called the Trust; and every such Trust shall be a body corporate and have perpetual succession and a common seal, and shall by the said name sue and be sued".

Chapter III of this Act makes provision for the preparation of a master plan by the Trust with various objectives. Section 33 of the Act states that

"Subject to the control of the State Government, the Trust shall, for the development and improvement of the area for which it has been constituted, prepare a master plan with the following among others, objectives in view, namely:-............... (k) development of residential areas on neighbourhood principles"

Section 34 (1) (l) states as follows :-

"34 (1) An improvement scheme framed within the frame work of the master plan may provide for all or any of the following matters, namely:- x x x x x (l) the provision of accommodation for any class of persons." Section 34 (2) (f) and (g) are to the following effect- "34 (2) An improvement scheme framed within the frame work of the master plan shall be of one of the following types, or a combination of any two or more of such types of or of any special features thereof, that is to say - * * * * (f) a development scheme, (g) a housing accommodation scheme."

Section 35 provides for general improvement schemes by the Trust within the framework of the master plan. The proviso to the section as originally enacted reads as follows:

"Provided that, where no master plan has been finally published under the second proviso to Sub-section (1) of Section 33, or any area included within the framework of the master plan has not been allotted to the Trust for execution after detailed scheming and the State Government is satisfied, on a resolution passed by the Trust or otherwise, that it is necessary to take immediate steps to frame a scheme under this section in respect of such area, the State Government may direct the Trust to frame such scheme and the provisions of this Act shall apply to that scheme as if it were an improvement scheme within the allotted plan."

By an amendment by Bihar Act 6 of 1956 a new section was substituted in place of this proviso. The newly inserted section reads as follows:

"42-A. Framing of schemes not included in the master plan in certain cases.--Notwithstanding anything to the contrary contained in any of this foregoing provisions of this Chapter, wherein master plan has been finally published under the second proviso to Sub-section (1) of Section 33, or any area included within the framework of the master plan has not been allotted to the Trust for execution after detailed scheming and the State Government is satisfied, on a resolution passed by the Trust or otherwise, that it is necessary to take immediate steps to frame an improvement scheme under this Chapter in respect of such area, the State Government may direct the Trust to frame such scheme and the provisions of this Act shall apply to that scheme as if it were a scheme within the allotted plan: Provided that the State Government shall not make such direction, if the scheme is inconsistent with the objects of the master plan mentioned in this Chapter."

Section 43 provides for the initiation of an improvement scheme and reads as follows: -

"43. An improvement scheme may be framed within the framework of the allotted plan by the Trust on its own motion, or on representation from the Municipal Commissioners or the Municipal Medical Officer of Health, or in respect of a municipal ward on a written representation signed by twenty-five or more residents of such ward who are liable to pay any tax assessed upon the annual value of buildings or lands under the Bihar and Orissa Municipal Act, 1922 : Provided that the representation from the Municipal Medical Officer of health or from the residents shall be submitted to the Trust through the Municipal Commissioners who shall forward the representation to the Trust as soon as possible with such recommendations as they may think fit."

Section 44 deals with the consideration of representations made by interested parties. Section 46 provides for the preparation, publication and transmission of notice as to improvement schemes. Section 46 states : -

"46 (1) When any improvement scheme has been framed, the Trust shall prepare a notice stating- (a) that the scheme has been framed, (b) the boundaries of the area comprised in the scheme, and (c) the place at which particulars of the scheme together with a map of the area comprised in the scheme, and a statement of the land which it is proposed to acquire and of the land in regard to which it is proposed to recover a betterment fee, may be seen at reasonable hours, (2) The Trust shall - (a) cause the said notice to be published weekly for three consecutive weeks in the Official Gazette and in local newspapers specifying the period within which objections will be received, and (b) send a copy of the notice to the Municipal Commissioners. (3) The Chairman shall cause copies of all documents referred to in Clause (c) of Sub-section (1) to be delivered to any applicant on payment of such fee as may be prescribed".

Section 47 confers the right upon the Municipality to make representations with regard to any scheme. Section 48 deals with notice of proposed acquisition of land and states as follows: -

"48 (1) within thirty days next following; the first day on which any notice is first published under Section 46 in respect of any improvement scheme, the Trust shall serve a notice on- (a) Every person whose name appears in the municipal assessment list as being primarily liable to pay any tax assessed on the annual value of any building or land which it is proposed to acquire in executing the scheme, or in regard to which the Trust proposes to recover a betterment fee, and (b) the occupier of each premises, entered in the municipal assessment list, which the Trust proposes to acquire in executing the scheme, (2) Such notice shall - (a) state that the Trust proposes to acquire such land or to recover such betterment fee for the purpose of carrying out an improvement scheme, and (b) require such person, if he objects to such acquisition or to the recovery of such betterment fee, to state his reasons in writing within a period of sixty days of the service of the notice. (3) Every such notice shall be signed by the Chairman or by a person authorised by him in that behalf."

Section 52 deals with notification of sanction of improvement scheme by the State Government and reads as follows: -

"52. (1) Whenever the State Government sanctions an improvement scheme, the fact shall be announced by notification in the Official Gazette and by publication in at least two local newspapers and, except in the case of a deferred street scheme, development scheme or town expansion scheme, the Trust shall forthwith proceed to execute the same. (2) The publication of notification under Sub-section (1) in respect of a scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned and shall be sufficient authority for the Trust to execute the scheme."

(6) Chapter IV deals with acquisition and disposal of land by the Improvement Trust. Section 68 expressly confers upon the Trust the power to purchase, lease or exchange any land which the Trust is authorised to acquire under the Act. Section 69 empowers the Trust "with the previous sanction of the State Government to acquire land under the provisions of the Land Acquisition, Act, 1894, for carrying out any of the purposes of the Act". Section 71 makes provision for modification of the Land Acquisition Act for the purpose of acquiring land for the Trust under Bihar Act 35 of 1951. Section 71 reads as follows-

"71. For the purpose of acquiring land for the Trust under the Land Acquisition Act, 1894- (a) the said Act shall be subject to the modifications specified in the Schedule; and (b) in case a Tribunal is constituted under Section 72- (i) the Tribunal shall (except for the purposes of Section 54 of that Act) be deemed to be the Court; (ii) the Tribunal shall have power to summon and enforce the attendance of witnesses, and to compel the production of documents, by the same means, and (so far as may be) in the same manner, as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908; and (iii) the award of the Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, and shall be final."

The modifications made in the Land Acquisition Act are specified in a Schedule as follows: -

"1. After Clause (e) of Section 3 of the Land Acquisition Act, 1894 (hereinafter in this Schedule referred to as the said Act), the following clause shall be deemed to be inserted, namely: - (ee) the expression local authority includes the Board of Trustees for the improvement of (name of the town), constituted under Section 3 of the Bihar Town Planning and Improvement Trust Act, 1951.

2. (1) The first publication of a notice of an improvement scheme under Section 46 of the Bihar Town Planning and Improvement Trust Act, 1951, shall be substituted for and have the same effect as publication in the Official Gazette and in the locality of a notification under Sub-section (1) of Section 4 of the said Act, except where a notification under Sub-section (1) of Section 4 of a declaration, under Section 6 of the said Act has been previously made and is in force. (2) Proceedings under Section 48 and Sub-section (1) of Section 50 of the Bihar Town Planning, and Improvement Trust Act, 1951, shall be substituted for and have the same effect as proceedings under Section 5-A of the said Act. (3) Subject to the provisions of paragraphs 6 and 7 of this Schedule, the issue of a notice under Clause (c) of Sub-section (3) of Section 39 of the Bihar Town Planning and Improvement Trust Act, 1951, in the case of land proposed to be acquired, in pursuance of that clause, and in any other case the publication of a notification under Section 52 of that Act shall be substituted for and have the same effect as a declaration under Section 6 of the same Act except where a declaration under the last, mentioned section has been previously made and is in force.

3. In Section 15 of the said Act, for the word; and figures and 24, the figures, words and letter 24 and 24-A shall be deemed to be substituted.

4. In Sub-section (3) of Section 17 of the said Act, after the word and figures Section 24, the word, figures and letter or Section 24-A shall be deemed to be inserted.

5. After Section 17 of the said Act, the following section shall be deemed to be inserted, namely: - 17-A. Transfer of land to Trust.- In every case referred to in Section 16 or Section 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Trust and the land shall thereupon vest in the Trust, subject to the liability of the Trust to pay any further costs which may be incurred on account of acquisition.

6. (1) In Sub-section (1) of Section 23 of the said Act, for clauses first and sixthly, the following clauses shall respectively be deemed to be substituted, namely: - first the market value of the land according to the use to which the land has been put during the preceding five years-

(a) at the date of the issue of the notice under Clause (b) of Sub-section (3) of Section 39 of the Bihar Town Planning and Improvement Trust Act, 1951, in case the land is proposed to be acquired in pursuance of that clause; and (b) at the date of the first publication of the notice under Section 46 of that Act, in any other case. sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the date referred to in paragraph (a) or paragraph (b), as the case may be, of clause first, and the date on which the Collector takes possession of the land. (2) In the same section, to Sub-section (2), the following proviso shall be deemed to be added, namely: - Provided that this sub-section shall not apply where the land acquired is situated in an area which is declared by the State Government to be a congested or slum area and the land is not in the actual possession of the owner, (3) In the same section, after Sub-section (2), the following sub-section shall be deemed to be added, namely: - (3) For the purposes of clause first of Sub-section (1) of this section- (a) if the market value of the land has been increased or decreased owing to the land falling within or near to the alignment of a projected public street, so much of the increase or decrease as may be due to such cause shall be disregarded; (b) if any person, otherwise than in accordance with the provisions of this Act, erects, re-erects, adds to, or alters any wall or building so as to make the same project into the street alignment or beyond the building line prescribed by any scheme made under this Act, then, any increase in the market value resulting from such erection, re-erection, addition or alteration shall be disregarded; (c) if the market value is specially high in consequence of the land being put to a use which is unlawful or contrary to public policy, that use shall be disregarded and the market value shall be deemed to be the market value of the land if put to ordinary use; (d) if the market value of any building is specially high in consequence of the building being so over-crowded as to be dangerous to the health of the inmates, such over-crowding shall be disregarded, and the market value shall be deemed to be the market value of the building if occupied by such number of persons only as should be accommodated in it without risk of danger from over-crowding; Provided that Clauses (c) and (d) shall not apply in the case of a building which is in the actual occupation of the owner.

(7) For clause seventhly of Section 24 of the said Act, the following clause shall be deemed to be substituted, namely :- seventhly, any outlay on additions or improvements to land acquired which was incurred after the date with reference to which the market value is to be determined, unless such additions of improvements were necessary for the maintenance of any building in a proper state of repair. X X X X X X"/ 7. The argument on behalf of the petitioners is that in view of the special provisions made in Section 71 of Bihar Act 35 of 1951, read along with the Schedule, the State Government has no authority to proceed under the Land Acquisition Act and publish the notifications under Section 4 of that Act which are annexures A and B. In our opinion, the argument put forward on behalf of the petitioners is well founded and must be accepted as correct. The principle applicable to a case of this description is generalia specialibus non derogant.

"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."

(Lord Celborne in Seward y. Vera Cruz, (1884) 10 AC 59 at p. 68). This principle was applied by the Judicial Committee in Secy. of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 PC 149 [LQ/PC/1931/46] , where it was observed by Sir George Lowndes that the provisions in the Calcutta Improvement Act (Bengal Act 5 of 1911) must take precedence over the provisions of the Land Acquisition Act on the well recognised principle of generalia specialibus non derogant. The same view has been expressed by a Division Bench of this Court in Bhagwati Charan v. State of Bihar, 1953 BLJR 684 at p. 686 and also by another Division Bench of this Court in N. K. Banerjee v. State of Bihar, 1961 Pat LR 18 : (AIR 1961 Pat 384 [LQ/PatHC/1961/6] ). In view of the principle laid down in these cases we are of opinion that the State Government have no authority to take steps for acquisition of land for the Improvement Trust under the general provisions of the Land Acquisition Act after the coming into force of Bihar Act 35 of 1951 and after the constitution of the Board of Trustees under Section 3 of that Act. It follows, therefore, that the notifications of the State Government dated the 19th January, 1961, which are annexures A, and B to all these applications, must be held to be ultra vires and illegal.

(8) On behalf of the respondents an alternative argument was presented by the Advocate-General that even if the Improvement Trust had to adopt the machinery of acquisition provided in Bihar Act 35 of 1951 for the purpose of acquiring land for implementing a master plan or an improvement scheme under that Act, still it was open to the Improvement Trust to ask the State Government to acquire land under the general provisions of the Land Acquisition Act for the improvement of any particular area within its jurisdiction without framing a master plan under Section 33 of the Act or without framing an improvement scheme under the amended Section 42-A of the Act. We are unable to accept this argument as correct. Upon a review of the provisions of Bihar Act 35 of 1951, which have already been referred to, it is manifest that the Improvement Trust is a body incorporate by statute and Section 3 of the Act confers upon it the duty of carrying out the provisions of the Act in any local area. The Act also prescribes the special manner in which the Improvement Trust is to carry out the statutory duties. Section 33 expressly states that

"subject to the control of the State Government, the Trust shall, for the Development and improvement of the area for which it has been constituted, prepare a master plan. ........."

Section 34 confers power upon the Trust to make an improvement scheme within the framework of the master plan with regard to certain matters. Sections 35, 36, 37, 38, 39, 40, 41 and 42, all confer power upon the Trust to make several kinds of schemes but within the limit and framework of the master plan prepared under Section 33 of the Act. Section 42-A, which was substituted by the amending Act 6 of 1956, however, provides that even if a master plan has not been finally published it is open to the State Government, on a resolution passed by the Trust or otherwise, to direct the Trust to frame an improvement scheme, provided such a scheme is not inconsistent with the object of the draft master plan. It, therefore, appears to us that the Improvement Trust is bound to follow the procedure expressly specified in the Act for the object of carrying out the duties imposed upon it under the Act, and it is not open to the Trust to adopt any other machinery of its own for carrying out its duties. The principle is that if a statute directs that the statutory authority is to exercise a power in certain manner, that power must be exercised in that particular manner and in no other manner. In other words, the Improvement Trust constituted under Bihar Act 35 of 1951 is legally entitled to carry out its duties for which it has been constituted in the manner prescribed in the statute and in no other manner. That is to say, the Improvement Trust cannot carry out any development or expansion scheme without preparing a master plan under Section 33 of the Act or with out following the procedure prescribed under Section 42-A of the amending Act. In Viners Abr. (Tit. Negative, A. pl. 2) the following rule is laid down;

"Every statute limiting anything to be in one form, although it be spoke in the affirmative, yet includes in itself a negative"; and in Bacons Abr. (Tit. Statute, G.) the rule given is, that "if an affirmative statute which is introductive of a new law direct a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way."

To illustrate this principle reference may be made to Ex parte Stephens, (1876) 3 Ch D 659. The question in that case was whether a mere word or distinctive combination of letters was a trade-mark within the meaning of the Trade Marks Registration Act 1875. By Section 10 of that Act, it was enacted that a Trade Mark might consist of (among other things) "any special or distinctive combination of letters used as a trade mark before the passing of this Act". It was accordingly held that "a word which had not been used as a trade mark before the passing of the Act could not be used as a trade mark after the passing of the Act". At p. 660, Jessel, M. R., states

"Here is a power to register a special and distinctive word if used before the Act, showing that it cannot be registered under the Act. Otherwise it would be contravening the well-known rule, that when there is a special affirmative power given which would not be required because there is a general power, it is always read to import the negative, and that nothing else can be done, so that the power to register a trade mark used before the passing of the Act clearly negatives the conclusions that a distinctive word can be used as a trade mark first used after the passing of the Act. A well-known illustration of that rule may be derived from the Act which gave power to railway companies to borrow on mortgage or bond. It was said that, irrespective of that Act, any corporation might borrow, by common law either on mortgage or otherwise. The answer was, that there being a definite power given you must import the negative so that the company could only borrow on mortgage or bond. So here, there being power to register a distinctive word used before the Act, it is conclusive to my mind that it cannot be registered if first used after."

(9) For the reasons we have expressed we hold that the notifications of the State Government dated the 19th January, 1961, under Section 4 of the Land Acquisition Act, published in the Bihar Gazette on the 24th January, 1961, which are annexures A and B to these applications, must be quashed by a writ in the nature of certiorari under Article 226 of the Constitution. We accordingly allow all these applications. There will be no order as to costs.