Singh Surana & Ors Vs. First Land Acquisition Collector & Ors  Insc 798 (13 November 2006)
Bhan & Dalveer Bhandari Dalveer Bhandari,J.
appeal is directed against the judgment of the Division Bench of the Calcutta
High Court delivered in FMAT No.6 of 1997 dated 10th October, 2002.
appellant is aggrieved by the Notification under Section 4 and declaration
under Section 6 of the Land Acquisition Act, 1894 dated 13th December, 1994 and
23rd June, 1995 respectively published and made by the Government of West
Bengal in respect of premises no.4, Pretoria Street, Calcutta measuring more or
less 0.0988 hectare (0.2441 acre).
appellant had challenged the said notification by filing a writ petition before
the Calcutta High Court.
learned Single Judge had allowed the writ petition and quashed the
notification. The said notification under section 4 reads as under:
Calcutta No.4364-LA(PW)/3P-21/94/Home (Police) Dated, Calcutta the 13th December, 1994 WHEREAS it appears to the Governor that land is
likely to be needed for a public purpose not being a purpose of Union namely for permanent accommodation of
office-cum-residence of Dy. Commissioner of Police Security Control under
Commissioner of Police, Calcutta, Home (Police) Deptt. Government of
West Bengal in Police Station District Calcutta Ward No.63 of Calcutta
Municipal Corporation, it is hereby notified that a piece of land comprising
Western portion of premises No.4, Pretoria Street, Calcutta and measuring more
or less 0.0988 hectare (0.2423 acre) and bounded as specified below:- North by
: Pretoria Street East by : Remaining portion of Premises No.4, Pretoria
: Premises No.5, Pretoria
Street West by :
Premises Nos.12 & 15, Lord Sinha Road
is likely to be needed for the aforesaid public purpose at the public expense
within the aforesaid Ward of the Calcutta Municipal Corporation in the City of Calcutta.
Notification is made, under the provisions of Section 4 of Act I of 1894 to all
whom it may concern.
of the land may be inspected in the Office of the First Land Acquisition
Officer, Calcutta, at No.5, Bankshall Street, Calcutta 700 001.
exercise of the powers conferred by the aforesaid Section, the Governor is
pleased to authorise the Officers for the time being engaged in the
undertaking, with their servants and workmen, to enter upon and survey the land
and do all other acts required or permitted by that section.
person interested in the above land, who has any objection to acquisition
thereof, may within thirty days after the date on which public notice of the
substance of this Notification is given in the locality, file an objection in
writing before the First Land Acquisition Collector, Calcutta, at No.5, Bankshall
Street, Calcutta-700 001.
Order of the Governor T.N. Khan Deputy Secretary to the Govt. of West Bengal." Thereafter, on 23.6.1995,
declaration under section 6 was issued by the Government of West Bengal. The
said declaration as published in Calcutta Gazette reads as under:
Calcutta No.4059-L.A./3P-21/94/Home (Police)
Dated: 23.6.95 WHEREAS the Governor is satisfied that land is needed for a
public purpose being/not being a purpose of Union,
namely for permanent accommodation of office-cum-residence of Dy. Commissioner
of Police Security Control under Commissioner of Police Calcutta, Home (Police) Deptt. Govt. of N.
Bengal, in Police Station Park Street, District Calcutta, Ward No.63 of
Calcutta Municipal Corporation, it is hereby declared that a piece of land
comprising premises No. Western portion of Premises No.4, Pretoria Street,
Calcutta and measuring more or less 0.0988 hectare (0.2441 acre) and bounded on
the North by : Pretoria Street East by : Remaining portion of Premises No.4,
Pretoria South by : Premises No.5, Pretoria Street West by : Premises No.12
& 15, Lord Sinha Road is needed for the aforesaid public purpose at the
public expense partly at the public expenses and partly at the expense of
within the aforesaid ward of the Calcutta Municipal Corporation in the City of
Declaration is made under the provision of Section 6 of Act 1 of 1894/read with
the said Notification, to all whom it may concern.
of the land may be inspected in the Office of the First Land Acquisition
Collector, Calcutta, at No.5, Bankshall Street, Calcutta-700
order of the Governor, (P.K. Guha Roy) Deputy Secretary to the Govt. of W.B.
I.C.A. 2744(2)/95 Date: 28.6.95." In the said declaration, it is clearly
incorporated that the said piece of land is needed for office-cum- residence of
Dy. Commissioner of Police (Security Control) at the public expense.
reasons for setting aside section 4 notification and declaration under section
6 of the Land Acquisition Act, were as follows:
publication thereof, having not been preceded by handing over vacant possession
of the land, by the Government to the respondents, in compliance with the order
dated 18th August, 1993, passed by the learned Single Judge in Writ Petition
No.3799 of 1992, had amounted to practicing fraud by the Government upon the
the declaration under Section 6 was set aside on the ground that the statement
incorporated in the said declaration that the said premises was being acquired
'partly at the public expense and partly at the expense of within the aforesaid
ward' as published in the newspaper indicated total non-application of mind by
the concerned authorities".
year 1943, under the Defence of India Rules, the premises situated at 4, Pretoria Street, Calcutta was requisitioned by the Government of West Bengal. After
requisition, the Government started using the ground floor of the two-storeyed
building, standing thereon, as office of the Dy. Commissioner of Police
(Security Control), and the first floor thereof, as residential accommodation
of the said officer. Admittedly, the premises and the land appurtenant to the
premises has been continuously in possession of the respondent-State Government
since 1943 and from year 1943, the said premises is being used as the office of
the Dy. Commissioner of Police (Security Control). In other words, for the last
more than 63 years the office of Dy. Commissioner of Police (Security Control)
has been continuously functioning from the said premises.
this petition, we are primarily concerned with the validity of the issuance of
notification under section 4 and declaration under section 6 of the Land
Acquisition Act, 1894 in respect of the said premises.
impugned judgment and other judgments delivered from time to time, the other
facts regarding requisition and acquisition have been incorporated.
briefly, we would indicate those facts in order to understand the controversy
involved in the said case properly and comprehensively. We would like to
clearly indicate that our directions would remain confined only to the validity
of Section 4 and declaration made under Section 6 of the Act.
facts Brief facts necessary to understand and comprehend the controversy
involved in the case are briefly stated as under.
the acquisition of the said premises in the year 1943, both office and
residence of the Dy. Commissioner of Police (Security Control) started
functioning at the said premises. On 28th December, 1947, the Government of West Bengal
de-requisitioned the said land, but detained possession thereof. Again, by
order dated 30th
January, 1959 issued
under Section 3(1) of the West Bengal Premises Requisition and Control
(Temporary Provision) Act, 1947, the Government requisitioned the said land and
continued to use the same for the same purpose.
appellant purchased the said land on 27.9.1982 along with the existing
building. The appellant filed a writ petition being W.P. No.872 of 1984 before
the Calcutta High Court in the year 1984.
writ petition was allowed by the learned Single Judge vide judgment dated 17th September, 1985. The respondent-State preferred an
appeal (FMA No.508 of 1985). The said appeal was disposed of by the judgment of
the Division Bench dated 12th
December, 1985. The
requisition thereof was to remain valid for a period of six months from 12th
December, 1985 and the requisition in regard to the garden was put to an end
with the direction to hand over the possession to the appellant with liberty to
acquire at the same time.
appellant apprehending acquisition of the said land under the provisions of the
West Bengal Land (Requisition and Acquisition) Act,
1948, on 25th April,
1986 moved the second
Writ Petition (Civil Rule No. 5025(W) of 1986).
respondent-Government once again requisitioned the said land by making an order
dated 31st May, 1986 under Section 3(1) of the West
Bengal Act 2 of 1948. The respondent-Government of West Bengal continued to use the said
requisitioned land for the same purpose as before. Thereafter, for acquiring
the said land, the government published a notice dated 14th August, 1986 under Section 4(1a) of the West
Bengal Act 2 of 1948 in the official gazette on 16th August, 1986.
appellant challenged the said order and notice under Sections 3(1) and 4(1a) of
the West Bengal Act 2 of 1948 by filing a third Writ Petition (Civil Rule No.
8407(W) of 1987). The learned Single Judge disposed of the said Civil Rule
8407(W) of 1987. Both the said order under Section 3 (1) and Notice under
Section 4(1a) were set aside.
respondent-Government preferred an appeal (FMAT No. 2224 of 1987) and it was
disposed of by the Division Bench on 7th September, 1990. The appeal was allowed and the
judgment appealed from was set aside to the extent indicated hereinbelow. The
relevant portion of the judgment is reproduced hereinbelow :- "It however
appears to us that if the vacant land to the extent of 15 feet at the back side
of the covered portion of the building is acquired the purpose for which the
building is intended to be acquired will be satisfied and the entirety of the
vacant land and the back side of the said building is not necessary to be
acquired. The order of acquisition of vacant land at the back of the building
beyond 15 ft. of the vacant land at the back side of the building therefore
stands annulled. It also appears to us that in the facts of this case that the
State Government intended from the very beginning to acquire the premises for
the said Security Control Department and for accommodating the in charge of the
said department viz. The Deputy Commissioner of Police (Security Control). It
was never intended by the State Government to requisition the premises
temporarily for the sole purpose of requisition. It will not be correct to
contend that the Government had intended initially to keep the premises in
requisition but later on, it decided to acquire the said premises. Records of
the Government Department also clearly demonstrate that the property was
intended to be acquired for the said purpose and as the time for acquisition as
specified by the Court of Appeal was running out and there was urgent necessity
to maintain status quo as regards possession before acquisition proceeding is
finalized under Act II of 1948, the order of requisition was made within six
months only as a step in aid to pass consequential order of acquisition under
Section 4(1a) of Act 1948. Looking to the relevant records of the case it does
not appear to us that the order of requisition was not passed within a period
of six months but such order was antedated." Against the order of the
Division Bench, special leave petition filed by the respondent-State was
dismissed by this Court. Consequently, on 12th June, 1991 physical possession of the land
beyond 15 ft. of the existing building was delivered back by the respondent- State to the appellant. A notice dated 14th September, 1992 under
Section 5(3) of the West Bengal Act 2 of 1948 was issued by the First Land
Acquisition Collector, Calcutta inviting the respondents to make their
respective claims to compensation for the said land already acquired by the
Government by publishing the said notice dated 14th August, 1986 under Section
4(1a) of the West Bengal Act 2 of 1948.
be pertinent to mention that the appellant instead of making any claim for the
grant of compensation, filed Writ Petition Nos.3798-3799 of 1992.
Writ Petition No.3798 of 1992, the notice dated 14th September, 1992 under Section 5(3) of the West Bengal Act 2 of 1948
and in FMAT No.2224 of 1987 was set aside on the ground that despite the
judgment of the Division Bench in FMAT No.2224 of 1987, the said notice had
order passed in Writ Petition No.3799 of 1992, the requisition order dated 30th January, 1959 was set aside together with the
direction to the State Government to deliver the vacant possession of the land
and the building to the appellant within six months. By a subsequent order
dated 8th July, 1994 passed in Writ Petition No.3798 of 1992, the learned Single
Judge was pleased to modify his order dated 18th August, 1993 to the effect
that the said order would not prevent the Government from issuing fresh notice
in terms of the orders of the Court, for acquisition of the land within the
period of six months after they wanted to acquire the land.
this background, the respondent-State Government published the notification
dated 13th December,
1994 in the official
gazette on 21st
December, 1994 under
Section 4 of the Land Acquisition Act of 1894. In the notification, the same
public purpose was indicated that the premises were required for the office of
Deputy Commissioner of Police (Security Control) which had been in possession
of respondent State of West
Bengal since 1943.
The land (the purpose for which it was being used from the year 1943) and the
land (the covered area 15 ft. as upheld by the Division Bench in FMAT No.2224
of 1987) at the same premises was needed by the State Government at the public
appellant had filed his objections under Section 5A of the Act. The objections
of the appellant were heard by the competent authority and thereafter,
declaration under Section 6 of the Act was issued by the competent authority on
23rd June, 1995. It was published in the newspaper
on 6 and 7th July, 1995 and in the official gazette on 7th August, 1995. According to the appellant, the
notification under Section 4 of the Land Acquisition Act could not have been
validly issued in respect of the land, possession whereof had been retained
illegally by the State Government. It was further incorporated that the
Government had earlier been continuing possession of the land only in terms of
the requisition order dated 31st May, 1986.
The said order of requisition having been quashed by the Court's order dated 18th August, 1993, the Government's possession of
land sought to be acquired became illegal and unauthorized. It was asserted by
the appellant that having abandoned the earlier proceedings initiated under the
West Bengal Act 2 of 1948, as was evident from the fact of publication of the
impugned Notification under Section 4 read with Section 4 of the Act No.1 of
1894, the State Government had lost the right to retain the possession of the
land. The possession would have been taken only in terms of the provisions of
Section 16 of the Act 1 of 1894. It was further asserted by the appellant that
the very fact of Government publishing the Notification under Section 4, while
illegally retaining possession of the land was sufficient to hold that the
power was exercised mala fide.
learned Single Judge came to the conclusion that possession of the land could
be taken by the Government only after passing of an award under the provisions
of the Act 1 of 1894.
instant case, no award has been passed, the possession of the land had always
remained with the Government. The possession of the land had not been handed
over to the respondent in spite of Court's order dated 18th August, 1993 passed by the learned Single Judge.
According to the appellant, non-delivery of possession of the land had vitiated
the Notification under Section 4 of the Land Acquisition Act so as to make it a
nullity. The Government was granted liberty to acquire the land in accordance
with law but that liberty was subject to handing over the derequisitioned land
to the respondent.
appellant submitted that the publication of the Notification under Section 4 of
the Act 1 of 1894 without first delivering back possession of the land to the
respondent in terms of the court's order passed in Writ Petition No.3799 of
1992 amounted to practicing fraud by the government upon the statute.
contended by the respondent before the Division Bench that since the Government
had been granted liberty to take steps for acquisition of the land and the
Notification under Section 4 of the Act 1 of 1894 was issued pursuant to grant
of such liberty, there was no scope and reason for the State Government to give
back possession of the land to the appellant; as a condition precedent for
initiation of proceedings. As regards the declaration, it has been contended
that the learned Single Judge should not have decided the question of validity
by relying on a printing mistake appearing in the declaration which had been
published in the newspaper because the purported vagueness indicated by the
learned Single Judge did not exist and a real one as was apparent from the
Notification itself and the declaration published in the official gazette.
the notification under section 4 and declaration under section 6 have been
reproduced in the earlier part of the judgment. The respondent placed reliance
on Sri Nripati Ghoshal v. Premavati Kapur & Ors. [(1996) 5 SCC 386 (para
4)] and First Land Acquisition Collector & Ors. v. Nirodhi Prakash Gangoli
& Anr. [(2002) 4 SCC 160 (para 6)] and contended that the State Government
had power to initiate an acquisition proceeding by publishing a Notification
under Section 4 of the Act and in respect of any land which is in the
Government's possession and, therefore, Notification published in the instant
case cannot be faulted with, on the ground as contended by the appellant.
learned counsel for the appellant also contended that delivery of possession of
the land in the facts and circumstances of the present case was a sine qua non
for publishing the Notification under Section 4 of the Land Acquisition Act.
question of requirement of delivery of possession reliance has been made on Raghunath
& Ors. v. State of Maharashtra & Ors. [AIR 1988 SC 1615 (para
9)] Hindustan Oil Mills Ltd. & Anr. v. Special Deputy Collector (Land
Acquisition) [AIR 1990 SC 731 (paras 8 & 9)] and State of West Bengal v. Bireshwas Dutta Estate (P) Ltd.
[(2000) 1 Calcutta Law Times 165(HC) (para 37)].
has also been placed on Sailendra Narayana Bhanja Deo v. State of Orissa [AIR 1956 SC 346 (para 8).
of the impugned judgment The Division Bench carefully examined the pleadings,
documents and the judgments cited at the Bar. The Court came to a categorical
finding that for the purpose of examining the validity of a Notification under
Section 4 of the Land Acquisition Act, the question of possession of land is
absolutely irrelevant; the examination should remain confined only to the
question of existence of public purpose. The Division Bench drew support for
the aforesaid view from the case of Nirodhi Prakash Gangoli. The Division Bench
also observed that neither the appellant had seriously contended that behind
the proposed acquisition, the public purpose was absolutely absent; nor did the
learned Single Judge arrived at the conclusion that the proposed acquisition
was not for a notified public purpose.
Government of West Bengal was empowered to take steps for acquisition of any
land in any locality, if the same was needed for public purpose under section 4
of the Land Acquisition Act. According to the Division Bench, in absence of any
bar, the Government was fully empowered to publish a notification under Section
4 in respect of a piece of land which is already in the government's possession.
The Division Bench observed that the order dated 18th August, 1993 passed by the learned Single Judge was in ignorance of both
the aforementioned statutory provisions and the binding Division Bench
Prakash Gangoli's case (supra), exactly similar controversy came before the
Court for adjudication regarding physical possession. The Court held as under:
It is indeed difficult for us to uphold the conclusion of the Division Bench
that acquisition is mala fide on the mere fact that physical possession had not
been delivered pursuant to the earlier directions of a learned Single Judge of
Calcutta High Court dated 25.8.1994. When the Court is called upon to examine
the question as to whether the acquisition is mala fide or not, what is
necessary to be inquired into and found out is, whether the purpose for which
the acquisition is going to be made, is a real purpose or a camouflage. By no
stretch of imagination, exercise of power for acquisition can be held to be mala
fide, so long as the purpose of acquisition continues and as has already been
stated, there existed emergency to acquire the premises in question. The
premises which were under occupation of the students of the National Medical
College, Calcutta, were obviously badly needed for the College and the
appropriate authority having failed in their attempt earlier twice, the orders
having been quashed by the High Court, had taken the third attempt of issuing
notification under Sections 4(1) and 17(4) of the Act, such acquisition cannot
be held to be mala fide and, therefore, the conclusion of the Division Bench in
the impugned judgment that the acquisition is mala fide, must be set aside and
we accordingly set aside the same." The High Court was correct and
justified in holding that while examining the validity of notification under
Section 4 of the Land Acquisition Act, the question of possession of land was
Division Bench held that the order dated 18th August, 1993 was per incurium. The Court also observed
that the learned Single Judge was wrong in holding that the publication of the
said Notification under Section 4 was an act done in violation of the said
order dated 18th
According to the Division Bench, the learned Single Judge proceeded on a
completely wrong premise that the land in question had been kept in possession
by the Government, even after formally derequisitioning the same; for, as a
matter of fact, the piece sought to be acquired, had never been derequisitioned
after 30th January, 1959; it had rather stood absolutely vested in the
Government. The Division Bench clearly came to the conclusion that the State
Government's possession of the land never became illegal or unauthorized by the
operation of law.
Division Bench specifically observed that the declaration published on 7th August, 1995 in the official gazette has been
produced before them. The Division Bench observed that they were satisfied that
the words 'partly at the public expense and partly at the expense of' within
the aforesaid ward published in the newspaper did not correctly reproduce the
declaration issued under section 6 of the Act. The official gazette had
correctly incorporated that the land was acquired at the public expense only.
Therefore, the Division Bench did not find any infirmity in Section 4
notification and in the declaration dated 23rd June, 1995 made under Section 6 of the Land
Acquisition Act, 1894.
Division Bench was also justified in coming to the conclusion that the
appellant cannot be permitted to take advantage of some typographical error in
the newspaper particularly when in the official gazette as well as Notification
under Section 4 and in the declaration of 23rd June, 1995 made under Section 6
of the Act of 1894, no such mistake appeared. Therefore, the submission of the
appellant was totally devoid of any merit.
be pertinent to mention that the Division Bench was quite careful about the
rights of the appellant and various proceedings and orders passed in those
proceedings. While taking into consideration all the relevant facts and
circumstances, the Division Bench clearly observed as under and we deem it
appropriate to quote the relevant observation of the Division Bench:- "We
have already seen that there was an unbroken and continuous valid requisition,
which had ultimately merged in the acquisition notice dated 14th August, 1986.
Therefore, to whatever rent compensation or damages the respondents were
entitled in law; they were always and still are, at liberty to claim and
realize the same from the Government, in accordance with law. Regarding the
propriety and necessity of the publication of the notification dated 13th
December, 1994, under section 4 of the Act 1 of 1894, in the face of the
Division Bench decision dated 7th September, 1990 in F.M.A.T. No. 2224 of 1987,
we do not propose to express any opinion, lest we should allow the appellants
to challenge their own action, to the inevitable detriment of valuable accrued
right, if any, of the respondents. We only say that in view of our decision to
allow the appeal, and uphold the section 4 notification and consequent section
6 declaration, we do not think it proper or necessary to pass any further order
on the respondents' said applications (C.A. Nos. 4592 and 5886 of 2001); and
they shall be deemed to be disposed of, with liberty to the respondents to
claim their dues, if any, before the appropriate forum, in accordance with
law." The Division Bench allowed the appeal and set aside the impugned
judgment of the learned Single Judge dated 2nd December, 1996. The Division Bench has observed
that the appellant would be entitled to recover rent, compensation of rent to
which he was entitled in law in appropriate proceedings. The appellant has
failed to point out any infirmity as far as Notification under Section 4 and
consequent declaration under Section 6 of the Act. Section 4 of the
Notification is usually assailed on the ground of public purpose. Therefore, we
deem it appropriate to enumerate the concept of Public Purpose and deal with
the decided cases interpreting the scope and ambit of public purpose.
Purpose Public Purpose has been defined in the Land Acquisition Act as under:-
"(f) the expression "public purpose" includes
provision of village-sites, or the extension, planned development or
improvement of existing village sites;
provision of land for town or rural planning;
provision of land for planned development of land from public funds in
pursuance of any scheme or policy of Government and subsequent disposal thereof
in whole or in part in lease, assignment or outright sale worth the object of
securing further development as planned;
provision of land for a corporation owned or controlled by the State;
the provision of land for residential purposes to the poor or landless or to
persons residing in areas affected by natural calamities, or to persons
displaced to affected by reason of the implementation of any scheme undertaken
by Government, any local authority or a corporation owned or controlled by the
the provision of land for carrying out any educational, housing, health or slum
clearance scheme sponsored by Government, or by any authority established by
Government for carrying out any such scheme, or, with the prior approval of the
appropriate Government, by a local authority or a society registered under the
Societies Registration Act, 1860 (21 of 1860), or under any corresponding law
for the time being in force in a State, or a co-operative society within the
meaning of any law relating to co-operative societies for the time being in
force in any State;
provision of land for any other scheme of development sponsored by Government
or, with the prior approval of the appropriate Government, by a local
the provision of any premises or building for locating a public office; but
does not include acquisition of land for Companies."
purpose will include a purpose in which the general interest of community as
opposed to the interest of an individual is directly or indirectly involved.
interest must give way to public interest as far as public purpose in respect
of acquisition of land is concerned.
Constitution of India, some guidelines can be traced as far as public purpose
is concerned in Article 37 of the Constitution. The provisions contained in
this Part (Directive Principles of the State Policy) shall not be enforceable
by any Court, but the principles therein laid down are nevertheless fundamental
in the governance of the country. It shall be the duty of the State to apply
these principles in making laws.
to Article 39 of the Constitution, the State shall, in particular, direct its
policy towards securing that the ownership and control of the material
resources of the community are so distributed as best to subserve the common
good. The laws made for the purpose of securing the constitutional intention
and spirits have to be for public purpose.
term 'public purpose' has been defined in Black Law Dictionary (Fifth Edition)
public purpose or public business has for its objective the promotion of the
public health, safety, morals, general welfare, security, prosperity and
contentment of all the inhabitants or residents within a given political
division, as, for example, a state, the sovereign powers of which are exercised
to promote such public purpose or public business." Public purpose is
bound to vary with times and prevailing conditions in the community or locality
and, therefore, the legislature has left it to the State (Government) to decide
what is public purpose and also to declare the need of a given land for the
purpose. The legislature has left the discretion to the Government regarding
public purpose. The Government has the sole and absolute discretion in the
State of Bihar v. Kameshwar Singh reported in AIR
1952 SC 252 at page 259, a Constitution Bench of this Court considered the
expression 'public purpose'.
J. explained the expression 'public purpose' in the following manner:
expression "public purpose" is not capable of a precise definition
and has not a rigid meaning. It can only be defined by a process of judicial
inclusion and exclusion. In other words, the definition of the expression is
elastic and takes its colour from the statute in which it occurs, the concept
varying with the time and state of society and its needs. The point to be
determined in each case is whether the acquisition is in the general interest
of the community as distinguished from the private interest of an
individual." In that case, S. R. Das, J. observed as under:
must regard as public purpose all that will be calculated to promote the
welfare of the people as envisaged in the Directive Principles of State policy
whatever else that expression may mean." Almost a century ago, in Hamabai
v. Secretary of State reported in (1911) 13 Bom LR 1097, Batchelor, J.
observed: "General definitions are, I think, rather to be avoided where
the avoidance is possible, and I make no attempt to define precisely the extent
of the phrase 'public purpose' in the lease; it is enough to say that, in my
opinion, the phrase, whatever else it may mean, must include a purpose, that
is, an object or aim, in which the general interest of the community, as
opposed to the particular interest of individuals, is directly and vitally
concerned" received the approval of the Privy Council".
definition of public purpose has been relied in number of subsequent decisions
including the Constitution Bench judgment of this Court.
concept of public purpose was dealt in great detail in a leading American case
Munn v. Illinois reported in (1877) 94 US 113: 24 L.
Ed 77 and in some other cases. The doctrine declared is that property becomes
clothed with a public interest when used in a manner to make it of public
consequence, and affect the community at large and from such clothing the right
of the legislature is deduced to control the use of the property and to
determine the compensation which the owner may receive for it. Field, J.
observed as follows:
declaration of the Constitution of 1870, that private buildings used for
private purposes shall be deemed public institutions, does not make them so.
The receipt and storage of grain in a building erected by private means for
that purpose does not constitute the building a public warehouse. There is no
magic in the language, though used in a constitutional convention, which can
change a private business into a public one, or alter the character of the
building in which the business is transacted." In United Community
Services v. Omaha Nat. Bank 77 N.W.2d 576, 585, 162
Neb. 786, the Court observed that a public purpose has for its objective the
promotion of the public health, safety, morals, security, prosperity,
contentment, and the general welfare of all the inhabitants.
People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 151 N.E.2d 311,
314, 14 III.2d 230 the Court observed that public purpose is not static
concept, but is flexible, and is capable of expansion to meet conditions of
complex society that were not within contemplation of framers of Constitution.
Green v. Frazier, 176 N.W. 11, 17, 44 N.D. 395, the Court observed that a
public purpose or public business has for its objective the promotion of the
public health, safety, morals, general welfare, security, prosperity, and
contentment of all the inhabitants or residents within a given political
division, as, for example, a state, the sovereign powers of which are exercised
to promote such public purpose or public business.
words of Lord Atkinson in Central Control Board v. Cannon Brewery Co. Ltd.
(1919) A.C. 744, the power to take compulsorily raises by implication a right
power of compulsory acquisition is described by the term "eminent
domain". This term seems to have been originated in 1525 by Hugo Grotius,
who wrote of this power in his work "De Jure Belli et Pacis" as follows
property of subjects is under the eminent domain of the State, so that the
State or he who acts for it may use and even alienate and destroy such
property, not only in the case of extreme necessity, in which even private
persons have a right over the property of others, but for ends of public
utility, to which ends those who founded civil society must be supposed to have
intended that private ends should give way. But it is to be added that when
this is done the State is bound to make good the loss to those who lose their
property." The Court observed that the requirement of public purpose is
implicit in compulsory acquisition of property by the State or, what is called,
the exercise of its power of 'Eminent Domain'.
Court further observed that the principle of compulsory acquisition of
property, says Cooley (in Vol. II at p. 113, Constitutional Limitations) is
founded on the superior claims of the whole community over an individual
citizen but is applicable only in those cases where private property is wanted
that public use, or demanded by the public welfare and that no instance is
known in which it has been taken for the mere purpose of raising a revenue by
sale or otherwise and the exercise of such a power is utterly destructive of
State of Bombay v. R.S. Nanji (1956) SCR 18, the Court observed that it is
impossible to precisely define the expression 'public purpose'. In each case
all the facts and circumstances will require to be closely examined in order to
determine whether a public purpose has been established. Prima facie, the Government
is the best judge as to whether public purpose is served by issuing a
requisition order, but it is not the sole judge.
courts have the jurisdiction and it is their duty to determine the matter
whenever a question is raised whether a requisition order is or is not for a
said case, the Court observed that the phrase 'public purpose' includes a
purpose, that is, an object or aim, in which the general interest of the
community, as opposed to the particular interest of individuals is directly and
vitally concerned. It is impossible to define precisely the expression 'public
purpose'. In each case all the facts and circumstances will require to be
closely examined to determine whether a public purpose has been established.
case, the Court also referred to the following cases: The State of Bombay v. Bhanji
Munji & Another (1955) 1 SCR 777 and The State of Bombay v. Ali Gulshan
(1955) 2 SCR 867.
v. State of Punjab (1963) 2 SCR 774, the Court observed that public purpose
must include an object in which the general interest of the community, as
opposed to the particular interest of individuals, is directly and vitally
concerned. Public purpose is bound to change with the times and the prevailing
conditions in a given area and, therefore, it would not be a practical
proposition even to attempt an extensive definition of it. It is because of
this that the legislature has left it to the Government to say what is a public
purpose and also to declare the need of a given land for a public purpose.
Constitution Bench of this Court in Somawanti (supra) observed that whether in
a particular case the purpose for which land was needed was a public purpose or
not was for the Government to be satisfied about and the declaration of the
Government would be final subject to one exception, namely that where there was
a colourable exercise of the power the declarations would be open to challenge
at the instance of the aggrieved party.
Barkya Thakur v. The State of Bombay & Others (1961) 1 SCR 128, the Court
observed as under:
will thus be noticed that the expression 'public purpose' has been used in its
generic sense of including any purpose in which even a fraction of the
community may be interested or by which it may be benefited." The
Constitution Bench in Satya Narain Singh v. District Engineer, P.W.D., Ballia
and Anr. reported in AIR 1962 SC 1161 while describing public service observed
:- "It is undoubtedly not easy to define what is "public
service" and each activity has to be considered by itself for deciding
whether it is carried on as a public service or not. Certain activities will
undoubtedly be regarded as public services, as for instance, those undertaken
in the exercise of the sovereign power of the State or of governmental
functions. About these there can be no doubt.
a pure business undertaking though run by the Government cannot be classified
as public service. But where a particular activity concerns a public utility a
question may arise whether it falls in the first or the second category. The
mere fact that that activity may be useful to the public would not necessarily
render it public service. An activity however beneficial to the people and
however useful cannot, in our opinion, be reasonably regarded as public service
if it is of a type which may be carried on by private individuals and is
carried on by government with a distinct profit motive.
be that plying stage carriage buses even though for hire is an activity
undertaken by the Government for ensuring the people a cheap, regular and
reliable mode of transport and is in that sense beneficial to the public".
Arnold Rodricks v. State of Maharashtra, reported in (1966) 3 SCR 885, while
Justice Wanchoo and Justice Shah dissenting from judgment observed that there
can be no doubt that the phrase 'public purpose' has not a static connotation,
which is fixed for all times. There can also be no doubt that it is not
possible to lay down a definition of what public purpose is, particularly as
the concept of public purpose may change from time to time. There is no doubt
however that public purpose involves in it an element of general interest of
the community and whatever furthers the general interest must be regarded as a
Singhji v. Union of India (1981) 1 SCC 166, as per Sen, J., the concept of
public purpose necessarily implies that it should be a law for the acquisition
or requisition of property in the interest of the general public, and the
purpose of such a law directly and vitally subserve public interest.
speaking the expression 'public purpose' would however include a purpose in
which the general interest of the community as opposed to the particular
interest of the individuals is directly and virtually concerned.
Rao Bapurao Jadhav v. State of Maharashtra reported in (1997) 3 SCC 493, this
Court observed that "it is for the State Government to decide whether the
land is needed or is likely to be needed for a public purpose and whether it is
suitable or adaptable for the purpose for which the acquisition was sought to
be made. The mere fact that the authorized officer was empowered to inspect and
find out whether the land would be adaptable for the public purpose, it is
needed or is likely to be needed, does not take away the power of the
Government to take a decision ultimately".
Employees' Union v. State of Maharashtra &
Others reported in (1996) 10 SCC 150, this Court observed as under:
very object of compulsory acquisition is in exercise of the power of eminent
domain by the State against the wishes or willingness of the owner or person
interested in the land. Therefore, so long as the public purpose subsists the
exercise of the power of eminent domain cannot be questioned. Publication of
declaration under Section 6 is conclusive evidence of public purpose. In view
of the finding that it is a question of expansion of dockyard for defence
purpose, it is a public purpose." The right of eminent domain is the right
of the State to reassert either temporarily or permanently its dominion over
any piece of land on account of public exigency and for public good.
case of Coffee Board v. Commissioner of Commercial Taxes reported in (1988) 3
SCC 263, the Court observed that the eminent domain is an essential attribute
of sovereignty of every State and authorities are universal in support of the
definition of eminent domain as the power of the sovereign to take property for
public use without the owner's consent upon making just compensation.
power of eminent domain is not exercisable in Anglo-Saxon jurisprudence except
on condition of payment of compensation. In V.G. Ramachandran's Law of Land
Acquisition and Compensation (Eighth Edition) by G.C. Mathur, it is stated (at
page 1)- "In United States, the power of eminent domain is founded both on
the Federal (Fifth Amendment) and on the State Constitutions.
scope of the doctrine in America stands considerably circumscribed
by the State Constitutions. Now, the Constitution limits the power to taking
for a public purpose and prohibits the exercise of power of eminent domain
without just compensation. The process of exercising the power of eminent
domain now is commonly referred to as 'condemnation' or 'expropriation'."
A seven-Judge Bench of this Court in The State of Karnataka & Another v. Shri
Ranganatha Reddy & Another reported in (1977) 4 SCC 471, explained the
expression 'public purpose' in the following words:
It is indisputable and beyond the pale of any controversy now as held by this
Court in several decisions including the decision in the case of His Holiness Kesavananda
Bharati Sripadagalaveru v. State of Kerala  Supp. 1 S.C.R. 1 - popularly
known as Fundamental Rights case - that any law providing for acquisition of
property must be for a public purpose. Whether the law of acquisition is for
public purpose or not is a justifiable issue. But the decision in that regard
is not to be given by any detailed inquiry or investigation of facts. The intention
of the legislature has to be gathered mainly from the Statement of Objects and
Reasons of the Act and its Preamble. The matter has to be examined with
reference to the various provisions of the Act, its context and set up, the
purpose of acquisition has to be culled out therefrom and then it has to be
judged whether the acquisition is for a public purpose within the meaning of
Article 31(2) and the law providing for such acquisition.
When we ascertain the content of 'public purpose', we have to bear the above
factors in mind which mean that acquisition of road transport undertakings by
the State will undoubtedly be a public purpose. Indeed, even in England, 'public purposes' have been
defined to mean such 'purposes' of the administration of the government of the
country (p. 228, Words & Phrases Legally defined, II Edn.). Theoretically,
or even otherwise, there is no warrant for linking up public purpose with State
necessity, or in the court throwing off the State's declaration of public
purposes to make an economic research on its own. It is indeed significant that
in Section 40 (b) of the Land Acquisition Act, 1894, the concept of 'public
use' took in acquisition for the construction of some work even for the benefit
of a company, provided such work as likely to prove useful to the public. Even
the American Constitution, in the 5th Amendment, uses the expression 'public
use' and it has been held in India in Kameshwar
that 'public purpose' is wider than 'public use'." Ambiguity,
indefiniteness and vagueness of public purpose are usually the grounds on which
notifications under Section 4(1) of the Land Acquisition Act are assailed.
purpose cannot and should not be precisely defined and its scope and ambit be
limited as far as acquisition of land for the public purpose is concerned.
purpose is not static. It also changes with the passage of time, need and
requirements of the community. Broadly speaking, public purpose means the
general interest of the community as opposed to the interest of an individual.
power of compulsory acquisition as described by the term 'eminent domain' can
be exercised only in the interest and for the welfare of the people. The
concept of public purpose should include the matters, such as, safety,
security, health, welfare and prosperity of the community or public at large.
concept of 'eminent domain' is an essential attribute of every State. This
concept is based on the fundamental principle that the interest and claim of
the whole community is always superior to the interest of an individual.
purpose for which the premises was required in the instant case was not
questioned seriously. As a matter of fact, the State of West Bengal has been using the premises in
question for more than six decades for the safety and security of the people by
having an office of the Deputy Commissioner of Police (Security Control).
by no stretch of imagination, it can be said that the premises was not required
by the State Government for the interest and welfare of the people or there was
no public purpose involved in acquiring the premises in question.
have heard the learned counsel for the appellant and the respondent at length.
We have also carefully examined the pleadings, documents, impugned judgments
and other judgments cited at the Bar. We see no reason to interfere with the
well-reasoned judgment passed by the Division Bench of the Calcutta High Court,
particularly, when the Division Bench had given liberty to the appellant to
recover rent, compensation or damages in appropriate proceedings in accordance
appeal being devoid of any merit is accordingly dismissed.
facts and circumstances of the case, we direct the parties to bear their own