Smt. Somavanti & Ors V. The State
Of Punjab & Ors  INSC 182 (2 May 1962)
02/05/1962 MUDHOLKAR, J.R.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) SUBBARAO, K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 151 1963 SCR (3) 774
F 1963 SC1890 (5) RF 1965 SC 646 (9) RF 1966
SC1788 (19A,21) D 1967 SC1074 (9) RF 1967 SC1081 (3) F 1968 SC 432 (15) F 1970
SC 984 (7) RF 1971 SC 306 (10) R 1971 SC1033 (8,9) F 1973 SC 974 (10) RF 1973
SC1461 (1071) E 1975 SC1182 (3) F 1977 SC 183 (6) R 1978 SC 515 (3,4,6) F 1979
SC1713 (5) R 1980 SC 214 (20) RF 1980 SC1678 (4) F 1984 SC 120 (4) F 1985
SC1622 (13) RF 1988 SC 501 (5) F 1988 SC 686 (18) F 1988 SC1353 (18) D 1989 SC
682 (4,7) R 1989 SC2105 (6) RF 1992 SC1456 (30)
Land Acquisition-Public purpose Government
declaration as to public purpose-If justiciable-"Conclusive evidence"
"Conclusive Proof Meaning of-Compensation-Government's contribution of
cost-if should be substantial-Indian Evidence Act, 1872 (1 of 1872), ss. 3, 4-Land
Acquisition Act, 1894 (1 of 1894) , ss. 4, 5A, 6-Constitution of India, Art. 14.
In February, 1961, the petitioners purchased
over six acres of land situate in the State of Punjab for a sum of Rs.
4,50,000 and claim, to have done so for the
purpose of establishing a paper mill. The sixth respondent, private' limited
company, which had a licence from the Government of India for starting a
factory for the manufacture of various 775 ranges of refrigeration compressors
and ancillary equipment, requested the State of Punjab for the allotment of an
appropriate site for the location of the factory. In the official Gazette of August 25, 1961. was published 'a notification of the Governor of Punjab dated 'August 18,
1961, under s. 4 of the Land Acquisition Act, 1894, to the effect that the land
belonging to the petitioners was likely to be needed by the Government at
public expenses for a public purpose, namely, for setting up a factory for
manufacturing various ranges of refrigeration compressors and ancillary
equipment. The Government directed that action under s. 17 of the Act shall be
taken because there was urgency and that the provisions of s. 5A shall not
apply to the acquisition. In the same Gazette another notification under s. 6
of the Act dated August 19, 1961, was published to the effect that the Governor
of Punjab was satisfied that the land was required by the Government at public
expense for the said purpose, The notification provide for the immediate taking
of possession of the land under the provisions of s. 17 (2) (c) of the Act. On September 29, 1961, the Government of Punjab sanctioned an expense of Rs. 100 for the
purpose of acquisition of the land. The petitioners filed an application under
Art. 32 of the Constitution of India challenging the legality of the action
taken, by the Government on the grounds, inter alia, (1) that the acquisition
was not for a public purpose either under s. 4 or s. 6 of the Land Acquisition
Act; (2) that the land was in reality being acquired for the benefit of the
sixth respondent and that the action of the Government amounted to
discrimination against the petitioners and violated Art. 14 of the Constitution
of India; (3) that the alleged contribution of Rs. 100 made by the Government
was a colourable exercise of power inasmuch as the amount was so unsubstantial
sum compared to the value of the property that it could not raise an inference
of Government participation in the proposed activity; and (4) that the
notifications under ss. 4 and 6 could not have been made simultaneously and
were, therefore, without efficacy.
Held (per Sinha, C. J., Rajagopala Ayyangar,
Mudholkar and Venkatarama Aiyar, jj.), (1) that the declaration made by the
Government in the notification under s. 6 (1) of the Land Acquisition Act,
1894, that the land was required for a public purpose, was made conclusive by
sub-s. 3 of s. 6 and that it was not open to a court to go behind it and try to
satisfy itself whether in fact the acquisition was for a public purpose.
Whether in a particular case the purpose for
which land was needed was a public purpose or not was for the 776 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 declaration would be open to challenge at the instance of the
Hamabai Framjee Petit v. Secretary of State
for India, (1914) L. R. 42 I. A. 44 and R. L. Arora v. The State of Uttar
Pradesh, (1962) Supp. 2 S. C. R. 149 distinguished.
Vedlapatla Suryanarayana v. The Province of
Madras, I. L. R. (1946) Mad. 153, approved.
(2) that there wag no difference between the
effect of the expression "conclusive evidence" in s. 6 (3) of the Act
from that of "conclusive proof", the aim of both being-to give
finality to the establishment of the existence of a fact from the proof of
(3) that the conclusiveness in s, 6 (3) must
necessarily attached not merely to a "need" but also to the question
whether the purpose was a public purpose. There could be no "need" in
(4) that the provisions of the Act which
provided that the declaration made by the State that a particular land was
needed for a public purpose, shall be conclusive evidence of the fact that it
was needed, did not infring the Constitution.
State of Bihar v. Maharajadhiraja Sir
Kameshwar Singh of Darbhanga & Ors.,  S. C. R. 889, Babu Barkya
Thakur v. State of Bombay & Ors.,  1 S. C. R. 128, and State of
Bombay v. Bhanji Munji & Anr.,  1 S. C. R. 777, relied on.
(5) that it was for the State to say which
particular industry might be regarded as beneficial to the public and to decide
that its establishment would serve a public purpose; therefore, no question of
discrimination would arise merely from the fact that the Government had
declared that the establishment of a particular industry was a public purpose.
Accordingly, the notifications in question, did not contravene Art. 14 of the
(6) that as s. 5A was out of the way the publication
in the game issue of the Gazette of the both the notifications that is the one
dated August 18, 1961, and that dated August 19, 1961, was not irregular.
Held, further (Subba Rao, J., dissenting),
that the notification dated August 19, 1961, under s. 6 of the Land Acquisition
Act, 1894, was not invalid on the ground that the 777 amount contributed by the
State towards the cost of the acquisition was only nominal compared to the
value of the land.
The expression "party out of public
revenues" in the proviso to s. 6 (1) of the Act did not necessarily mean
that State's contribution must be substantial; but whether a token contribution
by the State towards the cost of acquisition would be sufficient compliance
with the law would depend upon the facts of each case and it was open to the
court in every case which came before it to ascertain whether the action of the
State was a colourable exercise of power.
Sanja Naicken v. Secretary of State, (1926)
I. L. R. 50 Mad.
308 and Vadlapatla Suryanaryana v. The,
Province of Madras, 1. L. R.  Mad. 153, approved.
Ponnaia v. Secretary of State, A. 1. R. 1926
Mad. 1099, disapproved.
Chatterton v. Cave, (1878) 3 App. Cas. 483
and Maharajah Luchmeswar Singh v. Chairman of the Durbhanga Municipality, (1890)
L. R. 17 I. A. 90 held inapplicable.
Per Subba Rao, J.-in interpreting the proviso
to s. 6 (1) of the Act a reasonable meaning should be given to the expression
"wholly or partly." The payment of a part of a compensation must have
some rational relation to the compensation payable in respect of the
acquisition for a public purpose. So construed "part can only mean
substantial part of the estimated compensation. What was substantial part of a
compensation depended upon the facts of each case. In the instant case, it was
impossible to say that a sum of Rs. 100 out of an estimated compensation which
might go even beyond Rs. 4,00,000 was in any sense of the term a substantial
part of the said compensation. The Government had clearly broken the condition
and, therefore, it had no jurisdiction to issue the declaration under s. 6 of
ORIGINAL JURISDICTION : Petitions Nos. 246 to
248 of 1961.
Petitions under Art. 32 of the Constitution
of India for the enforcement of Fundamental Rights.
G. S. Pathak, Rameshwar Nath, S. C. Andley
and P. L. Vohra, for the petitioners (in petition No. 246 of 1 96 1), 778
Rameshwar Nath, S. N. Andley and P. L. Vohra for the petitioners (in petitions
Nos. 247 and 2 48 of 196 1).
S. M. Sikri, Advocate-General J. for the State
Of Punjab, N. S. Bindra and P. D. Menon, for respondent No. 1 (in all the
S. P. Varma, for respondent No. 6 (in all the
H. N. Sanyal, Additional Solicitor-General of
India, R. H. Dhebar and P. D. Menon, for the State of Gujarat (Intervener) (in
all the petitions).
1962. May 2. The following judgments were
delivered. The judgment of Sinha, C. J., Rajagopala Ayyangar, Madholkar and
Venkatarama Aiyar, J J., was delivered by Mudholker, J.
MUDHOLKAR, J.-The petitioners who have acquired
over six acres of land by purchase for Rs. 4,50,009 in February, 1961, under
five sale deeds and one lease deed claim to have done so for the purpose of
establishing a paper mill in collaboration with Messrs. R. S. Madhoram and Sons
who had been granted a licence for the establishment of a paper plant in
Ghaziabad in Uttar Pradesh. The aforesaid land is situate in the village Meola
Maharajpur, Tehsil Ballabhgarh, District Gurgaon, and abuts on the Mathura
Road, and is only about 10 or 12 miles from New Delhi. Respondent No. 6, Air
Conditioning Corporation (P) Ltd., is a private limited concern and holds a
licence from the Government of India for starting a factory for the manufacture
of various ranges of refrigeration compressors and ancillary equipment. We may
mention here that initially this project was allotted to the State of West
Bengal but at the request of State of Punjab its location was shifted to the
State of Punjab.
779 Respondent No. 6 requested the State of
Punjab for the allotment of an appropriate site for the location of the
factory. The petitioners contend that respondent No. 6 being interested in
acquiring land in the village Meola Maharajpur approached the State of Punjab
in or about the month of March, 1961, for the purpose of acquiring land for
their factory under the Land Acquisition Act, 1894 (hereinafter referred to as
the Act). One of the petitioners having learnt of this made an application on
March 23, 1961, to the Deputy Commissioner, Gurgaon, requesting him that none
of the lands purchased by the petitioners should be acquired for the benefit,
of respondent No. 6. Owners of adjacent lands Mr. Om Prakash, Mr, Ram Raghbir,
Mr. Atmaram Chaddha and Mr. Hari Kishen who are petitioners in W. P. 247 and
248 of 1961 which were heard along with. this petition made similar requests.
The petitioners allege that they were assured by the Deputy Commissioner that
their lands would not be acquired for the benefit of respondent No. 6.
Thereafter respondent No. 6 purchased by private treaty a, plot of land
measuring approximately 70,000 sq. yards contiguous to, the land owned by the
petitioners on or about April 21, 1961.
The, petitioners grievance is that
notwithstanding the assurances given to them by the Deputy Commissioner,
Gurgaon, the Governor of Punjab, by notification dated August 25, 1961, under
s. 4 of the Act declared that the lands of the petitioners in this petition as
well as those of the petitioners in the other two writ petitions were likely to
be needed by Government at public , expense for a public purpose, namely, for
setting up a factory for manufacturing various ranges of refrigeration
compressors.,and, ancillary equipment. It accordingly notified that the, land
in: the locality described 780 in the notification was required for the
Similarly it authorised the Sub-Divisional
Officer and Land Acquisition Officer, Palwal, to enter upon and survey the land
in the locality and to do all other acts required or permitted by s.4 of the
Act. It further directed that action under s. 17 of the Act shall be taken
because there was urgency and also directed that the provisions of s 5A shall
not apply to the acquisition. On August 19, the Governor of Punjab made a
notification under s. 6 of the Act to the effect that he was satisfied that the
land specified in the notification was required by Government at public expense
for public purpose, namely, for setting up a factory for the manufacture of
refrigeration compressors and other ancillary equipment and declared that the
aforesaid land was required for the aforesaid purposes. This declaration was
made "to all whom it may concern" and the Sub-Divisional Officer,
Palwal, was directed to take all steps for the acquisition of this land.
Finally the notification provided for the immediate taking of possession of the
land under the provisions of s. 17 (2) (c) of the Act. Both these notifications
were published in the Punjab Government Gazette of August 25, 1961.
The petitioners contend that these
notifications and the land acquisition proceedings permitted to be taken under
them violate their fundamental rights under Art. 19 (1) (f) and (g) to possess
the said land and carry on their occupation, trade or business and that,
therefore, they must be quashed.
It is their contention that they have
purchased this land bona fide for industrial purposes as land in the vicinity
of this land is being acquired by industrialists for establishing various
industries. The purpose is said to be the establishment of a paper
manufacturing plant. According to them 781 they have entered into an
arrangement with Messrs. R. S. Madho Ram & Sons who hold industrial licence
No. L/2-1/2 (1)/N-60/62. The proposed industry, according to them, would employ
about 200 people. The industry they wish to start is a new one so far as they
are concerned, whereas according to them, the respondent No. 6 is already
engaged in refrigeration industry and as far as they know, it has established a
factory for manufacturing refrigeration equipment at Hyderabad in the State of
It may be mentioned that some time after the
notification was published, that is, on September 29, 1961, the Government of
Punjab sanctioned the expense of Rs. 100 for the purpose of acquisition of this
land. According to the petitioners this was an after-thought and besides, a
token contribution of this kind is not sufficient to show that the acquisition
is being made partly at public expense.
The petition was opposed not only by
respondent No. 6 but also by the State of Punjab which is respondent No. 1 to
the petition. The respondent No. 1 denied that the petitioners had purchased
the land for a bona fide industrial purpose and would in fact use it for such
purpose. It also denied that any assurance was give to the petitioners that their
lands would not be acquired. It admitted that the respondent No. 6 had made an
application in December, 1960 for acquiring land for setting up its factory and
that, therefore, the Punjab Government agreed to do the needful.
According to respondent No. 1 the acquisition
proceedings have been undertaken for a public purpose and at public expense as
stated in the notification and that the State Government would make part
contribution towards the, payment of compensation of the land' out of public
revenues. In the circumstances it in 782 contended that the petitioners would
not be entitled to any relief whatsoever. They would of course get compensation
for the land as determined by the Land Acquisition Officer.
The action of the State Government is said to
be legal and in accordance with the provisions of the law because what was done
was permissible under ss.4 and 6 of the Act, that it was done bona fide, that
part of the compensation would be paid out of the, public revenues, that the
declaration made by the Government is conclusive evidence under sub-s. (3) of
s.6, that the land is needed for ,a public purpose, that the notifications were
made on different dates though they were published in the same issue of the
Gazette and are perfectly valid, that the land is not being acquired for a
company but for a public purpose, that, therefore, the provisions of Part VII
of the Act are inapplicable and that the lands are lying vacant and their
owners will be paid compensation. No question of depriving them of their
fundamental rights under Art. 19(1)(f) and (g) or of violation of their right
under Art. 14 therefore arises.
According to respondent No. 1 it would be
open to the petitioners to make their claim for compensation to the Land
Acquisition Officer for such loss as the acquisition would entail on them. It
also stated that as the land purchased by the respondent No. 6 through private
negotiation has no access to the main road' and as the land is inadequate to
meet the minimum essential requirements the acquisition of the, lands in
question became necessary.
On behalf of the respondent No. 6 it is
stated that the need for a factory like the one in its con. temptation is
acutely felt in India inasmuch a manufacture of compressors and the composes nets
of big and small air-conditioners, refrigerators, 783 water coolers and cold
storage cabinets is not being carried out anywhere in the country so far. The
import of these goods naturally drains away a considerable amount of foreign
exchange. It was, therefore, felt that by starting manufacture of these
articles in our country not only Will foreign exchange be saved, but some
foreign exchange will eventually be earned by the export of manufactured goods.
They further contend that the purpose for
which the factory is being set up must be regarded as a public purpose because
inter alia it is intended by manufacturing the aforesaid goods, to cater to the
needs of the public at large. It is in view of these circumstances that the
Government of India, accepting the recommendation made in this regard by the
licensing committee under the Industries Development and Regulation Act, 1951,
issued a licence in its favour on April 8, 1951. It then pointed out that it
has secured the collaboration in this project of a well-known American Company
named Borg-Warner International Corporation of Chicago, which is the biggest
manufacturers of air conditioning plants and equipment in the world, and that
the collaboration agreement has been approved by the Government of India in the
Ministry of Commerce. Its grievance is that this agreement has not been
implemented so far because it has not been able to get the land for
constructing the building in which the necessary machinery and ,implements'
could be installed. Finally it says that originally the licence was issued for
setting up a factory in the State of West Bengal and that it was at the
instance of the Government of Punjab that the Central Government permitted the
location of the factory to be shifted from West Bengal to Punjab. According to
it once the factory gets going it is likely to employ at least 1,000 workers.
It is not necessary to refer to the other
affidavits and the rejoinder affidavits except to some 784 portions of the
additional affidavit filed by Mr. M. B. Bhagat, Under Secretary on behalf of
the respondent No. 1.
We are referring only to those portions which
were relied on during the arguments before us. In that affidavit it is denied
that any licence had been granted to Messrs. R. S. Madho Ram & Sons for the
establishment of a paper plant in the Punjab. According to respondent No. 1
Messrs. R. S. Madho Ram & Sons were granted a licence on August 17, 1960,
for the establishment of an industrial undertaking in Ghaziabad (U.P.) for the
manufacture of writing and printing paper and pulp. It further stated that even
this licence has been cancelled by the Government of India by their letter
dated January 31, 1962. Since the said licensee did not take any effective
steps to establish the same. It then stated that the Air Conditioning
Corporation which was incorporated as a private limited company has since, with
the permission of the Central Government, been converted into a public limited
company with the name and style of "York India Ltd.", and that the
company has been granted a licence to manufacture refrigeration equipment by
the Industrial Licensing Committee. There is an agreement between York India
Ltd., and Messrs. York Corporation, U.S.A. a subsidiary of Borg Warner of the
U.S.A. where under the latter have undertaken to give all technical assistance
and technical training to the Indian personnel as also to contribute 50% of the
initial investment in the undertaking.
The respondent No. 6 expects to manufacture
70% of the equipment in the very first year and cent. per cent, by the end of
1966. It further stated that the foreign collaborators also have agreed to sell
the products of the firm outside India at prices and on terms and conditions
most favourable to the Indian firm, thereby enabling it to obtain access to the
foreign market. The foreign collaborator would make available to the Indian 785
personnel the technical ,know-how' and other information necessary for the
manufacture of refrigeration materials and that such assistance will itself be
very valuable. It denied that the respondent No. 6 has established a factory
similar to the one now intended to be established in Hyderabad as alleged by
the petitioners. It is admitted that licences have been granted to two other
concerns in India for the manufacture of similar equipment. Neither of those
licensees has actually started production, at any rate, so far, and, therefore,
it is not correct to say that similar equipment is already being manufactured
Then it stated "the products that are to
be manufactured by the respondent till now were being imported into India from
foreign countries and goods worth about Rs. 3,83,70,000 in 1960 and for the
first ten months in 1961 Rs. 3,56,50,000 were imported by the various licensees
holding import licences." It also stated that the respondent No. 6 was
granted licence to establish a factory in West Bengal but since no one had been
granted a licence to establish a factory of this kind in the Punjab its licence
was transferred to Punjab. The proposed factory would employ a large number of
persons and thus help to solve to some extent the exisiting problem of
unemployment in Punjab. Finally it stated that the establishment of the factory
as such is in furtherance of the industrial development of the Punjab State and
is, therefore, for a public purpose.
On behalf of the petitioners Mr. Pathak has
raised the following five contentions :
(1) The acquisition is not for a public
purpose either within s.4 or s.6 of the Land Acquisition Act or for a purpose
useful to the public as contemplated in s.41 and that the action of the
Government amounted to 786 acquiring property from one person and giving it to
(2) The alleged contribution of Rs. 100 made
by the Government is a colourable exercise of power, that no such intention was
mentioned prior to the notification and that the amount of Rs. 100 is so
unsubstantial a gum compared to the value of the property that it cannot raise
an inference of Government participation in the proposed activity.
(3) That the property is in fact being
acquired for a company and, therefore, the provisions of Part VII of the Act
should have been complied with. Non-compliance with those provisions vitiates
(4) The petitioners.' proposed paper mill
would be as good an industrial concern as the one intended to be established by
respondent No. 6 and the Government, in preferring the latter to the former,
has violated the guarantee of equal protection of law provided by Art. 14 of
(5) That the notification under ss. 4 and 6
could not have been made simultaneously and are, therefore, without efficacy,
We may deal with the third point raised by Mr. Pathak first, that is, regarding
non-compliance of provisions of Part VII.
It is common ground that those provisions
were not complied with. The reason for that is, that according to the
respondents the acquisition is not for a company but for a public purpose,
partly at public expense. Indeed, the respondents at no stage have relied on
the provisions of Part VII of the Act and therefore, the main question to be
considered is whether the acquisition is for a public purpose 787 partly at
public expense or not. If it is so, then, of course, the petitions must
succeed. Therefore, it is the first two contentions raised by Mr. Pathak which
primarily need our consideration.
According to learned counsel for the
petitioners the statements made in the affidavits on behalf of the; State as;
well as, on behalf of the respondent No. 6 make it perfectly clear that the
land is being acquired for the respondents No. 6. Reliance, is placed
particularly upon that portion of the affidavit of the State, where it is
stated that the land is acquired for enabling the respondent No. 6, to have
access to the main road and for meeting their minimum requirements for
establishing their factory, It is further stated that the compensation for all
the land which is being acquired is to come out of the pockets not of the,
State Government but the respondent No. 6 itself. No doubt, the Government has
said that it has sanctioned the payment of Rs. 100 towards the payment of
compensation but that is only an insignificant fraction of the total amount of
compensation that would be payable in, respect of these Ian(Is, the petitioners
the a themselves-having paid Rs. 4,50,000 to the persons from whom they
acquired these lands.
On behalf of the respondents the learned
Advocate-General for Punjab contended that the declaration of the Government in
the notification that the land is required for a public purpose is made
conclusive by sub-s. 3 of s. 6 of the Act and, therefore, it is not open to
this Court to go behind it and try to satisfy itself whether in fact the
acquisition is for a public, purpose or not. Alternatively he contended that
the land is being acquired for a public purpose because the object of the
acquisition is to establish a new industry 788 and do away with imports of
refrigeration equipment and to enable technical education to be imparted to
Indian personnel in a new field. He further said that the acquisition will not
only save foreign exchange by lessening imports but will enable foreign
exchange to be earned from the export of goods manufactured in the proposed
The new industry is said to be of great
economic importance inasmuch as it will enable the preservation of food which
will otherwise be destroyed. Refrigeration equipment also contributes towards
the maintenance of health because it enables storage of medicines such as
antibiotics which are liable to be decomposed at normal temperatures prevailing
in our country. The industry proposed to be started will open a new avenue of
employment and diminish unemployment and generally advance the industrial
development of the country.
Finally he said that a part of the land is
required for building houses and quarters for the workers of the factory and to
give amenities to them. All these purposes are, therefore, said to be public
purposes. Reliance was placed by him on Vol. 19 of Encyclopedia Britannica, pp.
49 to 57 for showing the manifold applications of refrigeration in various
industries and activities. Reference was also made to Vol. 18 of Encyclopedia
Britannica, p. 745 wherein facilities for providing refrigeration have been
grouped under the heading Public utility'. Reference was also made to be next
page where it is stated "Every public utility must be in possession of
natural resources upon which that industry is based. Their sites must have
strategic locations. Limitation in the choice of this agent of production tends
to make the cost of acquiring or leasing these facilities greater than it would
be if the industry had a wider range of choice. Furthermore, utilities must
make allowances in advance for probable increase in the required capacity. For
these reasons utilities are provided 780 with the governmental power of eminent
domain which makes possible the `compulsory sale of private property."
Relying upon the affidavit of Mr. Bhagat, to which we have referred earlier,
the learned Advocate-General of Punjab said that the object of the Government
in acquiring these lands is to enable a new industry to be established not only
for saving foreign exchange and earning foreign exchange bat also for securing
the industrial advancement of the country, enabling the citizens to obtain
technical education in a new field, relieving to some extent the Pressure of
unemployment and so on. For all these reasons he contends that the acquisition
must be deemed to be for a public purpose even though the bulk of the
compensation for the acquisition will come from the pockets of respondent No.
In our opinion the question whether any of
the aforesaid purposes falls within the expression public purpose would arise
for consideration only if the declaration of the Government is not conclusive
or if the action of the Government is colourable. If, as contended by the
learned Advocate General, sub-s. 3 of s. 6 concludes the matter-and the
validity of this provision is not challenged and the action of the Government
is not colourable the other question would not arise for consideration.
It is strenuously contended on behalf of the
petitioners that sub-s. 3 of s. 6 does not debar this Court from considering
whether a purposed acquisition is for a public purpose or not. It is said, in
the first place, that this provision only makes the declaration
"conclusive evidence" and not "conclusive proof" and then
contended that the declaration is conclusive evidence only of a need and
A distinction is sought to be made between
"Conclusive proof" and "conclusive evidence" and 790 it is
contended that where a law declares that a fact shall be conclusive proof of
another, the Court is precluded from considering other evidence once such fact
Therefore, where the law makes a fact conclusive
proof of another the fact stands proved and the Court must proceed on that
basis. But, the argument proceeds, where the law does not go that far and makes
a fact only "conclusive evidence" as to the existence of another
fact, other evidence as to be existence of the other fact is not shut out. In
support of the argument reliance is placed on s. 4 of the Indian Evidence Act
which in its third paragraph defines 'conclusive proof' as follows :
"When one fact is declared by this Act
to be conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it".
This paragraph thus provides that further
evidence is barred where,, under the Indian Evidence Act, one fact is regarded
as proof of another. But it says nothing about what other laws may provide.
There are a number of laws which make certain fact& conclusive evidence of
other facts: (see Companies Act, 1956, s. 132 ; the Indian Succession Act, 1925,
s. 381 ; Christian Marriages Act, 1872, s. 61 ; Madras Revenue Act, 1869, s. 38
; Oaths Act, 1873, s. (11). The question is whether such provision also bars
other evidence after that which is conclusive evidence is produced.
The object of adducing evidence is to prove a
fact. The Indian Evidence Act, deals with the, question as to what kind of
evidence is permissible to be adduced for that, purpose and states in s. 3 when
a fact is said to be proved.
That section reads thus 791 'Evidence' means
and includes(1) all statements which the court permits or requires to be made
before it by witnesses, in, relation to matters of fact under, inquiry ; such
statements are called oral evidence ;
(2) all documents produced for the inspection
of the court ; such documents are called documentary evidence.
A fact is said to be proved when, after
considering the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
exists." Since evidence means and includes all statement which the court
permits or requires to be made,. when the law says that a particular kind of
evidence would be conclusive as to the existence of a particular fact it
implies that that fact can be proved either or by evidence or by some other
evidence which the Court permits or requires to be advanced.
Where such other evidence is adduced it would
be open to the Court to consider whether, upon that evidence, the fact exist or
not. Where on the other hand, evidence which is made conclusive is adduced, the
Court has no option but to hold that the fact exists. If that were not so, it
would be meaningless to call a particular piece of evidence as conclusive
evidence. Once the law says that certain evidence is conclusive it shuts out
any other evidence which would detract from the conclusiveness of that
evidence., In substance, therefore, there is no difference between conclusive
evidence and 792 conclusive proof. Statutes may use the expression 'conclusive
proof' where the object is to make a fact non justifiable. But the legislature
may use some other expression such as 'conclusive evidence' for achieving the
same result. There is thus no difference between the effect of the expression
conclusive evidence' from that of 'conclusive proof', the aim of both being to
give finality to the establishment of the existence of a fact from the proof of
Learned counsel contends that it is open to
the Court to examine whether the action of the executive, even in the absence
of an allegation that it is malafide, is related to the section or not and for
this purpose to consider whether the acquisition is for a public purpose. In
support of this contention he has relied upon the decision in State of Bihar v.
Maharajadhiraja Sir Kameswarsingh of Darbhanga(1).
There, Mahajan, J. 'as he then was,) has
expressed the view that the exercise of power to acquire compulsorily is
conditional on the existence of public purpose and that being so this condition
is not an express provision of Art.
31 (2) but exists aliund in the content of
the power itself.
That, however, was not the view of the other
learned Judges who constituted the Bench. Thus according to Mukherjea, J., (As
he. then was), the condition of the existence of a public purpose is implied in
Art. 31(2). (See pp. 957, 958).
Das. J. (as he then was), was also of the
same view. (See pp. 986 988). Similarly Patanjali Sastri, C.J., has also taken
the view that the existence of public purpose is an express condition of cl. 2
of Art. 31.
The Constitution permits acquisition by the
State of private property only if it is required for a, public purpose. But can
it; therefore, be said (1)  S.C.R.889 935.
793 that the provisions of a statute must be
so construed that the declaration by the Government as to the existence of
public purpose is necessarily justiciable ? We are not concerned here with a
post Constitution law but with a pre-Constitution law. The Act has been in
operation since 1894.
The validity of the law was challenged before
this Court in Babu Barkya Thakur v. The State of Bombay (1) on the ground that
it infringes the provisions of Arts. 31(2) and 19(1)(f) of the Constitution.
But this Court held that the law being a pre-Constitution law is protected from
the operation of Art. 31(2) by the provisions of Art. 31(5) (a). It also held,
following the decision in the State of ,Bombay v. Bhanji Munji (2) and that in
Lilavati Bai v. The State of Bombay (3) that the attack under Art. 19(1)(f) of
the Constitution is futile.
The argument, however, is that the protection
which the Act enjoys is only to this extent that even though any of its
provisions be in conflict with Art.31(2) the Act cannot be challenged on that
ground ; the protection does not however extend to other provisions of Part III
of the Constitution, such as Art. 19(1)(f). As we understand the decision in
Bhanji Munji's case (2) what this Court has held is that for a right under Art.
19(1).(f) to bold property to be available to a person, he must have the
property with respect to which he can assert such right. If the right to the
possession of the property is taken away by law protected by Art. 31 (5) (a),
Art. 19 (1) (f) is not attracted. That is the decision of this Court and it has
been followed in two other cases. All the decisions are binding upon us. It is
contended that none of the decisions has considered the argument advanced
before us that a law may be (1) (1961) 1 S.C.R. 128(2) 0935) 1 S.C.R. 777(3)
(1957) S.C.R. M.
794 protected from an attack under Art. 31
(2) but it *ill still be invalid under Art. 13 (2) if the restriction placed by
it on the right of a person to hold property is unreasonable.
In other words, for the law before us to
regarded as valid it must also satisfy the requirements of Art. 19(5) and that
only thereafter can the property of a person be taken away.
It is sufficient to say that though this
Court may not have pronounced on this aspect of the matter we are bound by the
actual decisions which categorically negative an attack based on the right
guaranteed by Art. 19(1)(f). The binding effect of a decision does not depend
upon whether. a particular argument was considered therein or not, provided
that the point with reference to which an argument was subsequently advanced
was actually decided. That point has been specifically decided in the three
decisions referred to above.
We, therefore, hold that since the Act
provides that the declaration made by the State that a particular land is
needed for a; public purpose shall be conclusive evidence of the fact that it
is so needed the Constitution is not thereby infringed.
For ascertaining the extent to which the
determination by the State is conclusive it would be desirable to examine the
relevant provisions of the Act. The preamble states that the law is for the
acquisition of land needed for public purposes and for companies and incidental
matters connected therewith. Section 2(f) defines public purpose as follows :
"the expression 'public purpose'
includes the provision of village sites in districts in which the appropriate
Government shall have declared by notification in the Official Gazette that it
is customary for the Government to make such provision:" 795 This is an
inclusive definition and not a compendious one and therefore, does not assist
us very much in Ascertaining the ambit of the expression 'public purpose'.
Broadly 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 individuals, is directly
and vitallv concerned. Then there is s. 4 which enables the State to publish a
preliminary notification whenever it appears to it that land in any locality is
needed or is likely to be, needed for a public purpose. The other aspects of
the section have no bearing upon the point before us and we need not refer to
them. Then there its s. 5A which gives to the person interested in the land
which has been notified as being needed or likely to be needed for a public
purpose or for a company, the right to object to the acquisition of the land.
Such objection has to be heard by the
Collector and after making such further enquiry as he thinks necessary the
record has to be submitted to the appropriate Government along with the report
containing the Collector's recommendations and the objections. subsection (2)
of s. 5A makes the decision of the Government on the objections final. This is
followed by s. 6 sub. s. (1) of which provides that when the Government is satisfied
that any particular land is needed for a public purpose, or for a company, a
declaration should be made to that effect and such declaration should be
published in the Official Gazette. Sub-section (2) specifies the matters
including the purpose for which the land is needed which are to be set out in
the declaration. Subsection (3) makes the declaration conclusive evidence of
the fact that the land is needed for a public purpose or for a company, as the
case may be. Section 17 of the Act confers special powers on the Government
which are exercisable in cases of emergency.
Sub-section (4) thereof provides 796 that in
those cases which fall under sub-s. (1) or Sub-s. (2) the appropriate
Government may direct that the provisions of s. 5A of the Act shall not apply
and also empowers the Government to make a declaration under s.6 in respect of
the land to be acquired at any time after the publication of the. notification
under sub-s. (1) of s.4.
These are the provisions which have a bearing
on the point under consideration.
It is clear from these provisions that the
object of the law is to empower Government to acquire land only for a public
purpose or for a company, and, where it is for a company the acquisition is
subject to the provisions of Part VII. As has been pointed out by this Court in
R. L. Arora v. The State of Uttar Pradesh (1) the acquisition for a company
contemplated by Part VII is confined only to cases where the Government is
satisfied that the purpose of obtaining the land is erection of dwelling houses
for workmen employed by the company or for the provision of amenities directly
connected therewith or for the construction of some work which is likely to
prove directly useful to the public.
After a notification under sub.s. (1) of s.4
is published a person interested in the land is entitled to object to the
acquisition. That objection may be raised on any ground as for instance that
the land is not in fact needed at all for any purpose or that it is not
suitable for the purpose for which it is, sought to be acquired or that the
purpose is not a public purpose or what is said to be a company is not a
company and so on. Finality is attached to the decision of the Government which
ultimately has to decide such objections. Then follows s.6 which enables the
Government to make a declaration provided that it is satisfied that a
particular land is needed for a, public purpose or for a company. No doubt, (1)
(1962) Supp. 2 S.C.R. 149.
797 it is open to the State Government in an
emergency by exercising its powers under sub. s. (4) of s. 17, to say that the
provisions of s. 5A would not apply. But for construing the provisions of s. 6
it would be relevant to bear in mind that section. The scheme of the Act is
that normally the provisions of s. 5A have to be complied with. Where, in
pursuance of the provisions, objections are lodged, these objections will have
to be decided by the Government. For deciding them the Government will have
before it the Collector's proceedings. It would, therefore, be clear that the
declaration that a particular land is needed for a public purpose or for a
company is not to be made by the Government arbitrarily, but on the basis of
material placed before it by the Collector. The provisions of sub.s. (2) of s.
5A make the decision of the Government on the objections final while those of
sub-s (1) of s. 6 enable the Government to arrive at it; satisfaction.
Sub-section (3) of s. 6 goes further and says that such a declaration shall be
conclusive evidence that the land is needed for a public purpose or for a
It is, however, argued by learned counsel
that the conclusiveness or finality attached to the declaration of Government
is only as regards the fact that the land is "needed" but not as
regards the question that the purpose for which the land is needed is in fact a
public purpose or what is said to be a company is really a company. Subsection
(1) does not affect a dichotomy between "need" and "Public
purpose or a company". There is no justification for making such a
dichotomy. By making it, not only will the language of the section be strained
but the purpose of the law will be stultified. The expression must be regarded
as one whole and the declaration held to be with respect to both the elements
of the expression.
798 The Government has to be satisfied about
both the elements contained in the expression "needed for a public purpose
or a company". Where it is so satisfied, it is entitled to make a
declaration. Once such a declaration is made subs. (3) invests it with
conclusiveness. That con-, elusiveness is not merely regarding the fact that
the Government is satisfied but also with regard to the question that the land
is needed for a public purpose or is needed for a company, as the case may be.
Then again, the conclusiveness must necessarily attach not merely to the need
but also to the question whether the purpose is a public purpose or what is
said to be a company is a company. There can be no "need" in the
abstract. It must be a need for a 'public purpose' or for a company. As we have
already stated the law permits acquisition only when there is a public purpose
or when the land is needed for a company for the purposes set out in s. 40 of
the Act. Therefore, it would be unreasonable to say that the conclusiveness
would attach only to a need and not to the fact that that need is for a public
purpose or for a company. No land can be acquired under the Act unless the need
is for one or the other purpose and, therefore it will be futile to give
conclusiveness merely to the question of need dissociated from the question of
public purpose or the purpose of a company. Upon the plain language of the
relevant provisions it is riot possible to accept the contention put forward by
Learned counsel put the matter in a slightly
different way and said that s. 6 (3) presupposes that the jurisdictional fact
exists, namely, that there is a public purpose or the purpose of a company
behind the acquisition and, therefore, the question whether it exists or not is
justiciable. The Act has empowered the Government to determine the question of
the need of land for a public 799 purpose or for a company and the jurisdiction
conferred upon it to do so is not made conditional upon the existence of a
collateral or extraneous fact. It is the existence of the need for a public
purpose which gives jurisdiction to the Government to make a declaration under
s. 6 (1) and makes it the sole judge whether there is in fact a need and
whether the purpose for which there is that need is a public purpose. The
provisions of sub-s. (3) preclude a court from ascertaining whether either of
these ingredients of the declaration exists.
It is, however, said that that does not mean
that in so far as the meaning to be given to the expression public purpose is
concerned the courts have no power whatsoever. In this connection the decision
of the Privy Council in Hamabai Framjee Petit v. Secretary of State for India
(1) was referred to. In that case certain land in Malabar Hill in Bombay was
being acquired by the Government of Bombay for constructing residences for
Government officers and the Acquisition was objected to by the lessee of the
land on the ground that the land was not being taken or made available to the
public at large and, therefore, the acquisition was not for a public purpose.
When the matter went up before the High Court 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 purposes' 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 X X particular 1)b P (1914) L.R. 42 IA. 44.
800 interest of individuals, is directly and
vitally concerned." In that case what was being considered was a re-entry
clause in a lease deed and not provisions of the Land Acquisition Act. That
clause left it absolutely to the lessor, the East India Company to say whether
the possession should be resumed by it if the land was required for a public,
purpose. It was in this context that the question whether the land was needed
for a public purpose was considered.
The argument before the Privy Council rested
upon the view that there cannot be a 'public purpose' in taking land if that
land, when taken, is not in some way or other made, available to the public at
large. Rejecting it they held that the true view is that expressed by
Batchelor, J., and observed:
"That being so, all that remains is to
determine whether the purpose here is a purpose in which the general interest
of the community is concerned. Prima facie the Government are good judges of
that. They are not absolute judges. They cannot say ,,sic volo sic jebeo, but
at least a Court would not easily hold them to be wrong. But here, so far from
holding them to be wrong, the whole of the learned judges, who are thoroughly
conversant with the conditions of Indian life, say that they are satisfied that
the scheme is one which will redound to public benefit by helping the
Government to maintain the efficiency of its servants. From such a conclusion
their Lordships would be slow to differ, and upon its own statement it commends
itself to their judgment".
Mr. Pathak strongly relied on these
observations and said that the Privy Council have held that the matter is
justiciable. It is enough to say 801 that that was not a case under the Land
Acquisition Act and, therefore, conclusiveness did not attach itself to the
satisfaction of the Government that a particular purpose fell within the
concept of public purpose.
Mr. Pathak then contended that the question
as to the meaning to be given to the phrase 'public purpose' is not given
conclusiveness by sub-s. (3) of s. 6. According to him all that sub-s. (3) of
s. 6 says is that the Government's declaration that particular land is needed
for a public purpose or a company shall be conclusive and that it does not say
that the Government is empowered to define what is a public purpose and then
say that the particular purpose falls within that definition. As already stated
no attempt has been made in the Act to define public purpose in a compendious
way. Public purpose is bound to vary with the times and the prevailing
conditions in a given locality and, therefore, it would not be a practical
proposition even to attempt a comprehensive 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 and for a public purpose.
It was contended on the basis of the decision
of this Court in R. L. Arora v. The State of U. P. (1) that-the Courts have
power to consider whether the purpose for which land is being acquired is a
public purpose. In that case land was being acquired, as already stated, for a
company and the real question which arose for consideration was, what is the
meaning to be attached to the words "useful to the public" occurring
in cl. (b) of sub-s. (1) of s. 40 of the Act. The land was required by the
company to enable it to establish its works and it was contended before this
Court that the products manufactured (1)  Supp. 2S.C.R.149 802 by the
company will be useful to the public in general and, therefore, the acquisition
would be covered by cl. (b) of sub-s. (1) of s. 40. Negativing this contention
Wanchoo, J., who spoke for the Court observed :
"It is true that it is for the
Government to be satisfied that the work to be constructed will be useful to
the public but this does not mean that it is the Government which has the right
to interpret the words used ins. 40 (1) (b)......It is the Court which has to
interpret what those words mean. After the court has interpreted these words,
it is the Government which has to carry out the object of ss. 40 and 41 to its
satisfaction. The Government cannot say that ss. 40 and 41 mean this and
further say that they are satisfied that the meaning they have given to the
relevant words in these sections has been carried out in the terms of the
agreement provided by them.................The Government cannot both give
meaning to the words and also say that they are satisfied on the meaning given
by them. The meaning has to be given by the Court and it is only thereafter
that the Government's satisfaction may not be open to challenge We have already
indicated what these words mean and if it plainly appears that the Government
are satisfied as a result of giving some other meaning to the words, the
satisfaction of the Government is of no use, for then they are not satisfied
about what they should be satisfied.
In the present case the Government seems to
have taken a wrong view that so long as the product of the works is useful to
the public and so long as the public is entitled to go upon the works in the
way of Body text Uf tQ34pe4-~ 803 business, that is all that is required by the
relevant words in as. 40 and 41' required It was no doubt argued before the
Court that the declaration made by the Government under s. 6 (1) that the land
was needed for a company is conclusive and, therefore, the question as to the
actual purpose of the acquisition is not justiciable. This Court pointed out
that s. 6 (3) makes the declaration under s. 6 (1) conclusive evidence of the
fact that the land is needed for a public purpose or for a company and that as
the declaration stated that the land was needed for a company and that fact was
not disputed by the parties, the provisions of s. 6 (3) were of no assistance.
We may point out that even according to that
decision conclusiveness attaches itself to the declaration that the.
land is required for a public purpose and.
instead of assisting the petitioners it in
fact assists the respondents. No doubt, in so far as an acquisition for a
company is concerned Part VII requires that before a declaration under s. 6 (1)
is made the Government should be satisfied that the land is required for one of
the two purposes set out in s. 40 (1) of the Act. The Government can consent to
the making of a declaration under a. 6 (1) after it is satisfied under s. 41
about the fact that the land is required for a company fort the purposes set
out in el. (a) and (b) of that section. But the declaration made thereafter is
confined only to one matter and that is that the land is required for a company
and nothing more. The question whether in fact the land is required by the
company for the purposes set out in el. (a) and (b) of s. 40 (1) is not germane
to the declaration. No doubt the power of the Government to make a declaration
with respect to an acquisition for a company is circumscribed and, therefore,
the Government is expected to exercise it with due regard to the limitation
placed upon it. But it does not follow that sub-a. (3) 804 of S. 6 makes the
declaration conclusive evidence not only of the fact that the land is required
for a Company but also of the fact that the land is required by a company for a
purpose specified in s. 40 (1) of the Act. The observations made by Wanchoo,
J., therefore do not assist the petitioners.
Reliance was then placed on two decisions of
this Court in which the meaning of the expression "public purpose" is
considered. One is Babu Barkya Thakur v. The State of Bombay (1). There this
Court observed "It 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." Later in the same judgment this Court pointed out that where a
large section of the community is concerned its welfare is a matter of public
concern. The other is Pandit Jhandu Lal v. The Slate of Punjab (2). There this
Court has pointed out that the purpose of public utility referred to in ss. 40
and 41 are akin to the public purpose.
No doubt in these decisions this Court stated
what, broadly speaking, the expression 'public purpose' means. But in neither
case the question arose for consideration as to whether the meaning to be given
to the expression 'public purpose' is justiciable.
Now whether in a particular case the purpose
for which land is needed is a public purpose or not is for the. State
Government to be satisfied about. If the purpose for which the land is being
acquired by the State is within the legislative competence of the State the
declaration of the Government will be (1)  1. S.C.R. 126, (2)
805 final subject, however, to one exception.
That exception is that if there is a colourable exercise of power the
declaration will be open to challenge at the instance of the aggrieved party.
The power committed to the Government by the Act is a limited power in the
sense that it can be exercised only where there is a public purpose, leaving
aside for a moment the purpose of a company. If it appears that what the
Government is satisfied about is not a public purpose but a private purpose or
no purpose act all the action of the Government would be colourable as not
being relatable to the power conferred upon it by the Act and its declaration
will be a nullity. Subject to this exception the declaration of the Government
will be final.
A number of decisions were cited before us by
the learned Advocate-General in support of the contention that the declaration
of the Government is final. One of those decisions is Wijeyesekera v. Festing
(1). In that case dealing with Ceylon Ordinance No. 3 of 1876 (Acquisition of
Land Ordinance, (Ceylon), 1876) which incidentally did not contain a provision
similar to that of sub-s. (3) of s. 6, their Lordships observed:
"The whole frame of the ordinance shows
that what the District Court is concerned with is the assessment of
compensation, but their Lordships do not desire torest their opinion that the
decision of the Governor is final merely upon the question. of the Court before
which the question is raised. It appears to their Lordships that the decision
of the Governor that the land is wanted for public purposes is final, and was
intended to be final, and could not be questioned in any Court." There,
the land was required :(or a road and the contention was that the Government
did not take the opinion of the Surveyor General as to its fitness (1) 
806 for such purpose. On this ground it was
contended that the Governor's declaration could be questioned. But this was
negatived by the Privy Council. Following this decision in Vadlapatla
Suryanarayana v. The Province of Madras(1) a Full Bench of the Madras High
Court held that a declaration by the Provincial Government under s. 6(1) of the
Act that certain lands were required for a public purpose is final and, where
there is no charge against the Provincial Government that it had acted in fraud
of its powers its action in directing the acquisition cannot be challenged in a
Court of law. Similar view has been taken in Samruddin Sheikh v. Sub-Divisional
Officer.(2) ; V. Gopalakrishna v.
The Secretary, Board of Revenue, Madras (3);
S. Jagannadha Rao v. The State of Andhra Pradesh (4) ; Secretary of State for
India in Council v. Akbar Ali (5). Several other decisions to the same effect,
some of them post Constitution, were also mentioned by the learned Advocate General,
which take the same view as in these decisions.
Not a single decision was however, brought to
our notice in which it has been held that the question as to what is a public
purpose or whether it exists can be inquired into by the Courts even in the
absence of colourable exercise of power, because s. 6(3) has become void under
Art. 13(2) of the Constitution.
It was next contended that sub-s. (3) of s. 6
cannot stand in the way in a proceeding under Art. 226 or under Art.
32 of the Constitution and in support of this
argument reliance was placed upon the decision in Chudalmuthu Pillai v. State
(6) ; Maharaja Luchmeshwar Singh v. Chairman of the Darbhanga Municipality (7);
(1) I.L R  Mad. 153.(2) A.I.R (1954)
(3) A.I.R 1954 Mad.362.(4) A I.R 196O A.P.
(5) (1923) I.L.R. 45 All. 413. (6 ) I.L. R.
Cochin. 488, (7) (1890) L.R. 17 nI.A. 90.
807 Rajindra Kumar Ruia v. Government of West
Bengal (1) ; Major S. Arjan Singh v. State of Punjab (2) ;. In the first
mentioned case it was contended that the order was actuated by mala fides and
also that there were various irregularities in the proceedings. As we have
already indicated, if the declaration is vitiated by fraud, then the
declaration is itself bad and what is bad cannot be protected by sub-s. (3) of
s. 6. In the next case the act of the Court of Wards in handing over the ward's
lands for a nominal consideration for a public purpose was challenged in a
suit. The challenge was upheld by the Privy Council on the ground that lawful
possession could only be taken by the State in strict compliance with the
provisions of the Land Acquisition Act. The question raised here did not arise
for consideration in that case. In the other two cases the declaration was
challenged under Art. 226 and in both the cases the challenge failed. In the
first of the two latter mentioned case it failed on the ground that there was
no fraud and in the second on the ground that the provisions of sub.s. (3) of
s. 6 precluded the court from challenging the validity of the declaration. None
of these cases, therefore support the contention of the petitioners.
Moreover we are not concerned here with the
powers of the High Court under Art. 226 but with those of this Court. It is
said, however that the bar created by s. 6(3) would not stand in the way of
this Court while dealing with a petition under Art. 32 and, therefore, it is
open to us to ascertain whether an acquisition is for a public purpose or not.
While it is true that the powers of this
Court cannot be taken away by any law which may hereafter be made unless the
Constitution itself is amended we are here faced with a provision of law which
is a pre-Constitutional law and which is protected by the (1) A.I.R. 1952. Cal.
573. (2) I.L.R. Punjab 1451.
808 Constitution-to the extent indicated in
Art. 31(5)(a) and an I attack on its validity on the ground that it infringes
the right guaranteed by Art. 19(1)(f) has failed. Therefore-it is a good and
valid law and the restriction placed by it on the powers of this Court under
Art. 32 must operate.
Though we are of the opinion that the courts
are not entitled to go behind the declaration of the Government to the effect
that a particular purpose for which the land is being acquired is a public
purpose we must emphasise that the declaration of the Government must be
relatable to a public purpose as distinct from a purely' private purpose.
If the purpose for which the acquisition is
being made is not relatable to public purpose then a question may well arise
whether in making the declaration there has been, on the part of the Government
a fraud on the power conferred upon it by the Act. In other words the question
would. then arise whether that declaration was merely a colourable exercise of
the power conferred by the Act, and, therefore, the declaration is open to
challenge at the instance of the party aggrieved. To such a declaration the
protection of 6(3) will not extend. For, the question whether a particular
action was the result of a fraud or not is always justiciable, provisions such
as s. 6(3) notwithstanding.
We were referred by the learned Advocate
General to a recent decision of the House of Lords in Smith v. East Elloe Rural
District Council (1) to which reference was made by a learned Advocate General.
In that case their Lordships were considering the Acquisition of Land
(Authorisation of Procedure) Act, 1946, (9 and 10 Geo. 6, c. 49), Sch. 1, Pt.
IV, paras 15 and 16. Paragraph 15 (1) of Part
IV, Sch. 1 to the Act provides as follows :
"If any person aggrieved by a compulsory
(1)  A.C. 736.
809 purchase older desires to question the
validity thereof..... on the ground that the authorisation of compulsory
purchase thereby granted is not empowered to be granted under this
Act.......... he may, within six weeks from the date on which notice of the
confirmation or making of the order.... is first published...... make an
application to the High Court........" Paragraph 16 provides as follows :
"Subject to the provisions of the last
foregoing paragraph, a compulsory purchase order.... shall not.... be
questioned in any legal proceedings whatsoever...... " The land having
been made the subject of compulsory purchase the owner brought an action in
which among other things, a declaration was added that the order was made and
confirmed wrongfully and in bad faith and that the clerk acted wrongfully and
in bad faith in procuring its order and confirmation. The House of Lords held
by majority that the action could not proceed except against the clerk for
damages because the plain prohibited in paragraph 16 precluded the Court
challenging the validity of the order.
They also held that paragraph 15 gave no
opportunity to a person aggrieved to question the validity of a compulsory
purchase order on the ground that it was made or confirmed in bad faith. As we
have already said the condition for the exercise of the powers by the State
Government is the existence of a public purpose (or the purpose of a company)
and if the Government makes a declaration under s. 6(1) in fraud of the powers
conferred upon it by that section the satisfaction on which the declaration is
made is not about a matter with respect to which it is required to be satisfied
by the 'Provision and, therefore, its declaration is open to challenge as being
without any legal effect. We 810 are not prepared to go as far as the House of
Lords in the above case.
This brings us to the second argument
advanced before us on behalf of the petitioners. The learned counsel contends
that there could be no acquisition for a public purpose unless the Government
had made a contribution for the acquisition at public expense. According to him
the acquisition in question was merely for the benefit of a company and that
the action of the Government was only a colourable exercise by it of its power
to acquire land for a public purpose. The contention is that before making a
declaration under sub-s. (1) of s. 6 the Government ought to have taken a
decision that it will contribute towards the acquisition. In the case before us
no such decision was taken by the Government till ;September 29, 1961, that is.
just one day after this writ petition was
admitted by this Court and stay order issued by it. It is then said that the
contribution of the Government towards the cost of acquisition being a very
small fraction of the total probable cost of acquisition the inference must be
that the acquisition was not even partly at public expense and, therefore, the
declaration was a colourable exercise of the power conferred by law. Then it is
said that not only does the declaration omit to state that the contribution of
the State towards the cost of acquisition was to be Rs. 100 only but also omits
to mention that what was decided was that the Government was to bear only a
part, of the cost of acquisition and not the whole of it. The notification is
said to be thus misleading and to create the impression that the entire cost of
the acquisition is to come out of the public exchequer. Finally it is contended
that the establishment of an industry by a private party for manufacturing
refrigeration equipment cannot fall within the meaning of the expression
811 It is no doubt true that the financial
sanction for the contribution of Re. 100 as part of the expenses for
acquisition was accorded by the Finance Department on September 29, 1961. No
doubt also that a day prior to the according of sanction this petition had been
admitted by this Court and a stay order issued. But from these two
circumstances it would not be reasonable to draw the inference that the
declaration made by the Government was a colourable exercise of its power. The provisions
of sub-s. (1) of a. 6, however, do not require that the notification made there
under must set out the fact that the Government had decided to pay a part of
the expenses of acquisition or even to state the extent to which the Government
is prepared to make part contribution to the cost of acquisition.
It is then contended that before the
Government could spend any money from the public exchequer for acquiring land a
provision his to be made in the budget and the absence of such provision would
be a circumstance relevant for consideration. It is sufficient to say that the
absence of a provision in the budget in respect of the cost of acquisition,
whole or part, cannot affect the validity of the declaration and that if
Government does spend some money without allotment in the budget, its
expenditure may perhaps entitle the Accountant General to raise an audit
objection or may enable the Public Accounts Committee of the State Legislature
to criticism the Government. But that is all.
Again, where the expenditure is of a small
amount like Rs. 100 it may he possible for the Government to make payment from
Contingencies and thus avoid objections of this kind.
Whatever that may be, these are not
circumstances which would suffice to show that the declaration was colourable.
It was stated at the bar by the learned
Advocate-General that the entire scheme of establishing a refrigeration factory
in Punjab was examined at various stages and at different levels of Government
as well as by different ministries and it was then decided to make a part
contribution towards the cost of acquisition from public funds. As required by
the Financial Rules the consent of the Finance Department had to be obtained
for this purpose. This particular stage occupied considerable time and that is
why there was a delay in according sanction.
The statement of the learned Advocate-General
was not challenged on behalf of the petitioners. Moreover the declaration under
sub-a. (1) of s. 6 is clear on the point that the land is being acquired at
public expense, and the provisions of sub-a. (3) of a. 6 precluded a Court from
going behind such a declaration unless it is shown that the Government has in
fact decided not to contribute any funds out of the public revenues for that
purpose. For, if the Government had in fact taken a decision of that kind then
the exercise of the power to make an acquisition would be open to challenge as
Then it is contended that the contribution by
the State towards the cost of acquisition must be substantial and not merely
nominal or token as in this case. The argument is that though the law permits
acquisition for a public purpose to be made by the State by contributing only a
part of the cost of acquisition that part cannot be a particle and in this
connection reliance was placed on the decision in Chatterton v. Cave (1) which
was followed in Ponnaia v. Secretary of State (2). In the latter case the High
Court of Madras observed that ,,the Legislature, when they provided that a part
of the compensation should be paid from public revenues, did not mean that this
condition would be satisfied-by payment of a particle, e. g. one anna in Rs. 5,
985". In that case land was being acquired (1) (1878) 3 App. Cas. 483,
491, 492. (2) A. I. R. 1926 Mad. 1099.
813 for making a road between two villages in
A sum of Rs. 5, 985 was required for the
acquisition. Out of this amount only one anna was agreed to be contributed by
the Government and it was contended on its behalf that this contribution
satisfied the requirements of s. 6 of the Act.
It was also contended that the declaration
made under sub-s. (1) of s. 6 could not be challenged in view of the provisions
of sub-s. (3) of a. 6 and reliance was placed on the decision in Wijeyesekara
v. Festing (1). According to the High Court the fast that the Government's
share in the cost of acquisition being 1/90,000 part of the amount, there was
no real and bona fide compliance with the terms of the section and that this
was an indication of the illusory character of the object for which the
provisions of the Act were being made use of. The High Court then referred to
the decision in Chatterton's case ( 2 ) and pointed out that the House of Lords
were averse to putting an interpretation on the words "or part
thereof" occurring in the Dramatic Copyright Act, (3 & 4 William IV,
c. 15) as would make a part to mean a particle. The High Court also referred to
the decision in Maharaja Luchmemar Singh's case (3 ) and held that the acquisition
was a colourable exercise of the power conferred by the Act.
This decision was not followed by the same
High Court in Senja Naicken v. Secretary of State (4) where it was held that
the State's contribution of one anna out of Rs. 926-8-6 for acquiring land for
a road, Rs. 926-7-6 having been contributed by the ryots, was sufficient
compliance with s. 6 (1) of the Act. Both these decisions came up for
consideration in Vadlapatla Suryanarayanas case (5) and there Ponnaia's case
(3) was over-ruled and the view taken in Senja Naickens case (4) was approved.
(1) (1926) I.L.R. 50 Mad. 308.(2) (1878) 3
App. Cas. 483.
491, 492 (3) (1890) L.R. 17 I.A. 90.(4)
(1926) 1 L.R. 6o mad. 308.
(5) I.L.R.  Mad, 153.(6) A. 1. R. 1926
814 Chatterton's case (1) was a case of
infringement of copyright where two plays had been adapted from a common source
by the parties to the litigation. In that case it was accepted before the Court
that the Dramatic Copyright Act protected ,parts" of dramatic work and
prohibited their use by persons other than the proprietor of the Copyright.
It was pointed out that in the case of
ordinary copyright of published work the protection was restricted only to the
whole of the work and did not extend to portions of those work. The Dramatic
Copyright Act also contained a provision directing that infringement of the
copyright would entitle the proprietor to damages of not less than 40
shillings. It was suggested that these differences indicated an intention to
prevent the invasion of the dramatic copyright independently of the quantity or
materiality of the portion of dialogue or dramatic incident proved to have been
copied by another. Dealing with this argument Lord Hatherley observed:
"Now it appears to me, my Lords, that this
argument goes much too far. As was said by the counsel for the respondent, the
appellant would wish to read the word 'part' in the Dramatic Copyright Act as
'particle', so that the crowing of the cook in Hamlet', or the introduction of
a line in the dialogue, might be held to be an invasion of the copyright
entitling plaintiff to 40s. damages and consequently, as the law stood I
believe at the time of the passing of the statute of 3 & 4 Will. 4, to the
costs of his action," (pp. 491-2) Then after pointing out that while in
the case of an ordinary copyright of published works a fair use made by others
would not amount to a wrong (1) 1878) 3 App. Cas. 483, 491,492.
815 justifying an action at law, the position
of dramatic performance is not the same he observed "They are not intended
to be repeated by others or to be used in such a way as a book may be used, but
still the principle de minimis non curat lex applies to a supposed wrong in
taking a part of dramatic works as well as in re-producting a part of a
(p. 492) Finally he observed that the parts
which were so taken were neither substantial nor material parts and as it was
impossible to say that damage had accrued to the plaintiff from such taking,
his action must fail.
Lord O'Hagan observed "
"Part", as was observed, is not necessarily the same as particle',
and there may be a taking so minute in its extent and so trifling in its nature
as not to incur the statutory liability." It is clear, therefore, that the
analogy of Chatterton's case (1) cannot possibly apply to a case under the Act.
As was pointed out in Senja Naicken's case (2) :
"Admittedly both of the litigants had
derived their compositions from a common source and it stands to reason that
before you can compel a man to pay damages for stealing the product of your
brain, time and labour, you must be able to point out that any resemblance
between his production and yours is not merely accidental but is a designed
theft of the product of our brain. Otherwise...... one might go to the absurdity
of objecting to a man using the same words (1) (1878) 3 App Cas. 483,491 492.
(2) (1826) I.L.R. 50 Mad. So.
816 though in a different collocation as you
have done." .
.lm0 With these observations we agree.
Now, as regards Maharaja Luchmeswar Singh's
case (1). The facts were their. The plaintiff's land was under the management
of the Court of Wards during his minority. A notification under s. 6( 1) of the
Land Acquisition Act, 1870 was made with respect to certain land belonging to
the plaintiff for being acquired by the Government at the expense of the
Darbhanga Municipality for a public purpose, that is, construction of a public
ghat or landing place in the town of Darbhanga. But instead of complying with
the provisions of the Land Acquisition Act and enquiring to the value of the
land, the Collector who was the Chairman of the Municipality and also a
representative of the Court of Wards took possession of the land and handed it
over to the municipality. The compensation paid to the plaintiff was Re. 1/, an
amount agreed to by the Manager. The plaintiff, after attaining majority,
instituted a suit for possession of land and for mesne profits. His suit was
dismissed by the courts below and he preferred an appeal before the Judical
Committee of the Privy Council. Allowing the appeal, their Lordships observed :
"The offer and acceptance of the rupee
was a colourable attempt to obtain a title under the Land Acquisition Act
without paying for the land........" How this case could at all have any
bearing upon the point which arose for consideration in Ponnaia's case we fail
to see. This case is also relied on before us on behalf of the petitioners and
we have referred to it earlier in this Judgment. It has nothing whatsoever to
do with the question of contribution by the State to-wards the cost of
(1) (1890) L.R. 17 I.A. 90.
(2) A.I.R. 1926 Mad. 1099.
817 We would like to add that the view taken
in Senja Naicken's case (1) has been followed by the various High Courts in
India. On the basis of the correctness of that view the State Governments have
been acquiring private properties all over the country by contributing only
token amounts towards the cost of acquisition. Titles to many such properties
would be unsettled if we were now to take the view that 'partly at public
expense' means substantially at public expense. Therefore, on the principle of
state decision the view taken in Senja Naicken's case(1) should not be
disturbed. We would, however, guard ourselves against being understood to say
that a token contribution by the State towards the cost of acquisition will be
sufficient compliance with the law in each and every case. Whether such
contribution meets the requirements of the law would depend upon the facts of
every case. Indeed the fact that the State's Contribution is nominal may well
indicate, in particular circumstances that the action of the State was a
colourable exercise of power. In our opinion ,part' does not necessarily mean a
substantial part and that it will be open to the Court in every case which
comes up before it to examine whether the contribution made by the State
satisfies the requirement of the law. In this case we are satisfied that it
satisfies the requirement of law. What is next to be considered is whether the
acquisition was only for a company because the compensation was to come almost
entirely out of its coffers and, therefore, it was in reality for a private 5
purpose as opposed to public purpose. In other words, the question is whether
there was on the part of the Government a colourable exercise of power.
Elaborating the point it is said that the establishment of a factory for
manufacturing refrigeration equipment is nothing but an ordinary commercial
venture and can by no stretch of imagination fall within the well-accepted 818
meaning of the expression 'public purpose', that even if it were to fall within
that expression the factory is to be established not by the Government, nor by
Government participation but solely by the respondent No. 6, a public limited
concern and that, therefore, the concern could acquire land for such a purpose
only after complying with the provisions of Part VII and that the use of the
provisions of a.6(1) is merely a colourable device to enable the respondent No.
6 to do something, which, under terms of s. 6(1), could not be done.
"Public purpose" as explained by
this Court in Babu Barkaya Thakur's case (1) means a purpose which is
beneficial to the community. But whether a particular purpose is beneficial or
is likely to be beneficial to the community or not is a matter primarily for
the satisfaction of the State Government.. In the notification under s. 6(1) it
has been stated that the IInd is being acquired for a public purpose, namely,
for setting up a factory for manufacturing various ranges of refrigeration
compressors and ancillary equipment.
It was vehemently argued before us that
manufacture of refrigeration equipment cannot be regarded as beneficial to the
community in the real sense of the word and that such equipment will at the
most enable articles of luxury to be produced. But the State Government has
taken the view that the manufacture of these articles is for the benefit of the
community. No materials have been placed before us from which we could infer
that the view of the Government, is perverse or that its action based on it
constitutes a fraud on its power to acquire land or is a colourable exercise by
it of such power.
Further, the notification itself sets out the
purpose, for which the land is being acquired. That purpose, if we may recall,
is to set up a factory for the manufacture of refrigeration compressors and (1)
(1961) 1 S.C.R. 128.
819 ancillary equipment. The importance of
the under'taking to a State such as the punjab which has a ,surplus of fruit,
dairy products etc. the general effect of the establishment of this factory on
foreign exchange resources, spread of education, relieving the pressure on
unemployment etc., have been set out in the affidavit of the respondent and
their substantee appears in the earlier part of this judgment.The affidavits
have not been controverted and we have, therefore, no hesitation in acting upon
On the face of it, therefore, bringing into
existence a factory of this kind would be a purpose beneficial to the public
even though that is a private venture. As has already been pointed out,
facilities for providing refrigeration are regarded in modern times as public
utilities. All the greater reason.therefore, that a factory which manufactures
essential equipment for establishing public utilities must be regarded as an
undertaking carrying out a public purpose. It is well established in the United
States. of America that the power of eminent domain can be exercised for
establishing public utilities. Such a power could, therefore, be exercised for
establishing a factory for manufacturing equipment upon which a public utility
depends. It is, therefore, clear that quite apart from the provisions of sub-s.
(3) of s. 6 the notification of the State Government under s. 6 cannot be
successfully challenged on the ground that the object of the acquisition is not
carry out a public purpose. We cannot, therefore, accept the petitioner's
contention that the action of the Government in making the notification under
sub-s. (1) of s. 6 was a colourable exercise of the power conferred by the Act.
The next argument to be considered is whether
there has been a discrimination against the petitioners. They claim that as
they intend to establish a factory for manufacturing paper which 820 is also an
article useful to the community they are as good an industrial concern as the
respondent No. 6 and the State Government in taking away land from them and
giving it to respondent No. 6 is practising discrimination against them.
In the first place it is denied on behalf of
the respondents that the petitioners are going to establish a paper factory.
It is not disputed that no new factory can be
established without obtaining a licence from the appropriate authority under
the Industries Development and Regulation Act, 1951, and that the petitioners
do not hold any licence of this kind. According to the petitioners, however;
they had entered into an agreement with the firm of Messrs. R. S. Madhoram
& Sons for establishing such a factory and that in collaboration with them
they propose to establish a factory on the lands which are now being acquired.
It is true that a licence for erecting a paper factory was granted to Messrs.
R. S. Madhoram and Sons but the location of that factory is to be in Uttar
Pradesh and not in the State of Punjab. Without therefore, obtaining the
approval of the appropriate authority the location of the factory could not be
shifted to the land in question which, as already stated, is situate in the
State of Punjab. Moreover this licence has since been cancelled on the ground
that Messrs. R. S. Madhoram and Sons have taken no steps so far for
establishing a paper factory. It is necessary to mention that the petitioners
allege that this cancellation was procured by the respondents with the object
of impeding the present petitioners. With that, however, we, need not concern
ourselves because that licence as it stood on the date of the petitions did
riot entitle Messrs. R. S. Madhoram and Sons to establish a factory in the
State of Punjab.
821 Apart from that it is always open to the
State to fix priorities amongst public utilities of different kinds, bearing in
mind the needs of the State the existing facilities and other relevant factors.
In the State like the Punjab where there is a large surplus of fruit and dairy
products there is need for preserving it. There are already in existence a
number of cold storages in that State. The Government would, therefore, be
acting reason. ably in giving priority to a factory for manufacturing
refrigeration equipment which would be available for replacement in these
storages and which would also be available for equipping new cold storages.
Apart from this it if; for the State
Government to say which particular industry may be regarded as beneficial to
the public and to decide that its establishment would serve a public purpose.
No question of discrimination would, therefore, arise merely by reason of the
fact that Government has declared that the establishment of a particular
industry is a public purpose. The challenge to the notification based on Art.
14 of the Constitution must, therefore, fail.
It is the last and final contention of the
petitioners in these petitions that the notifications under ss. 4 and 6 cannot
be made simultaneously and that since both the notifications were published in
the Gazette of the same date, that is, August 25, 1961, the provisions of law
have not been complied with. The argument is that the Act takes away from a
person his inherent right to hold and enjoy that property and, therefore, the
exercise of the statutory power by the State to take away such property for a
public purpose by paying compensation must be subject to the meticulous
observance of every provision of law entitling it to make the acquisition. It
is pointed out that under sub.s. 822 a particular land "is likely to be
needed for a public purpose". Thereafter under s. 5A a person interested
the land has a right to object to the
acquisition and the whole question has to be finally considered and decided by
the Government after hearing such person. It is only thereafter that in a
normal case the Government is entitled to make a notification under sub-s. (1)
of s, 6 declaring that it is satisfied "after considering the report, if
any, made under s. 5A, sub-s. (2) " that the land is required for a public
purpose. This is the sequence in which the notifications have to be made. The
reason why the sequence has to be followed is to make it clear that the
Government has applied its mind to all the relevant facts and then come to a
decision or arrived at its satisfaction even in a case where the provisions of
s. 5A need not be complied with. Undoubtedly the law requires that notification
under sub-s. (1) of s. 6 must be made .only after the Government is satisfied
that a particular land is required for a public purpose. Undoubtedly also where
the Government has not directed under sub-s. (4) of s. 17 that the provisions
of s. 5A Deed not be complied with the two notifications, that is, under sub-s.
(1) of s. 4 and sub-s. (1) of s. 6 cannot be made simultaneously. But it seems
to us that where there is an emergency by reason of which the State Government
directs under sub-s. (4) of s. 17 of the Act that the provisions of s. 5A need
not be complied with, the whole matter, that is, the actual requirement of the
land for a public purpose must necessarily have been considered at the earliest
stage itself that is when it was decided that compliance with the provisions of
s. 5A be dispensed with. It is, therefore, difficult to see why the two
notifications cannot, in such a case, be made simultaneously. A notification
under subs.(1) one of s. 4 is a condition precedent to the making of
notification under sub-a. (1) of s. 6. If the Government, therefore, takes a
decision to 823 make such a notification and, thereafter, takes two further
decisions, that is, to dispense with compliance with the provisions of s. 5A
and also to declare that the land comprised in the notification is in fact
needed for a public purpose, there is no departure from any provision of the
law even though the two notifications are published on the same day. In the
case before us the preliminary declaration under s. 4(1) was made on August 18,
1961, and a declaration as to the satisfaction of the Government on August 19,
1961, though both of them were published in the Gazette of August 25, 1961. The
preliminary declaration as well as the subsequent declaration are both required
by law to be published in the official gazette. But the law does not make the
prior publication of notification under sub-s. (1) of s. 4 a condition
precedent to the publication of a notification under sub-s. (1) of s. 6. Where
acquisition is being made after following the normal procedure the notification
under the latter section will necessarily have to be published subsequent to
the notification under the former section because in such a case the observance
of procedure under s. 5A is interposed between the two notifications. But where
s. 5A is not in the way there is no irregularity in publishing those
notifications on the same day. The serial numbers of the notifications are No. 5809/41
B(1)/61/18755 dated August 18, 1961, and 5809-4 IB (1)/61/18760 dated August
19, 1961, and it would appear from them that the preliminary notification did
in fact precede the final declaration.
These were the only objections raised before
us and as everyone of them has failed the petitions must be dismissed.
We accordingly dismiss them with costs. As
however, all petitions were heard together there will be only one hearing fee.
824 SUBBA Rao, J.-I have perused the judgment
prepared by my learned brother, Mudholkar, J. With great respect, I cannot
The fact are fully stated by my learned
brother and they need not be restated except to the extent relevant to the
question I propose to consider.
About six acres of land purchased by the
petitioners in Writ Petition No. 246 of 1961 for a sum of Rs. 4,60,000 in
February, 1961, is situate in village Meola Maharajpur, Tehail Balabhgarh,
District Gargaon. On August 25, 1961, the Governor of Punjab published a
notification dated August 18, 1961, in the Official Gazette under s.4 of the
Land Acquisition Act, 1894, hereinafter called the Act, to the effect that the
said land was likely to be needed by the Government at public expense for a
purpose, namely, for setting up a factory for manufacturing various ranges of
refrigeration compressors and ancillary equipment. Under s.17 of the Act the
appropriate Government directed that the provisions of s.5A will not apply to
the said acquisition;
On the same day, another notification under
s.6 of the Act dated August 19, 1961, was published to the effect that the
Governor of, Punjab was satisfied that the land specified therein was required
by the Government at public expense for the said purpose. On Septemher 29,
1961, the Government of Punjab sanctioned an expense of Rs. 100 for the purpose
of acquisition of the said land. The validity of the said notification is
questioned on various grounds. But as I am in favour of petitioners on the
question of interpretation of the proviso to s.6 of the Act, I do not propose
to express my opinion on any other question raised in the case.
The material part of s.6(1) of the Act reads:
"Subject to the provisions of Part VII
of this Act, when the appropriate Government is 825 satisfied, after
considering the report, if any, made under section 5A, sub-section (2), that
any particular land is needed for a public purpose, or for a Company, a
declaration shall be made to that effect under the signature of Secretary to
such Government or of some officer duly authorized to certify its order
Provided that no such declaration shall be made unless the compensation to be
awarded for such property is to be paid by a Company, or wholly or partly out
of public revenues or some fund controlled or managed by a local
authority." Under that section, the Government may declare that a
particular land is needed for a public purpose or for a company; and the
proviso imposes a condition on the issuance of such a declaration. The
condition is that no such declaration shall be made unless the compensation to
be awarded for such property is to be paid by the company or, wholly, or
'partly out of the public revenues. A reasonable construction of this provision
uninfluenced by decisions would be that in the case of an acquisition for a
company, the entire compensation will be paid by the company, and in the case
of an acquisition for a public purpose the Government will pay the whole or a
substantial part of the compensation out of public revenues. The underlying
object of the section is apparent: it is to provide for a safeguard against
abuse of power. A substantial contribution from public coffers is ordinarily a
Guarantee that the acquisition is for a public purpose. But it is argued that
the terms of the section are satisfied if the appropriate Government
contributes a nominal sum, say a pie, even though the total compensation
payable may run into lakhs. This interpretation would lead to extraordinary
results. The Government may acquire the land of A for B for a declared public
purpose, contributing a pie towards the 826 estimated compensation of say, Rs.
1,00,000. If that was the intention of the Legislature, it would not have
imposed a condition of payment of part of the compensation, for that provision
would not serve the purpose for which it must have bean intended. Therefore, a
reasonable meaning should be given to the expression "wholly or
partly". The proviso says that the compensation shall be paid by the
company or, wholly or partly, out of public revenues. A contrast between these
two modes of payment suggests the idea that in one case the compensation must
come out of the company's coffers and in the other case the whole or some
reasonable part of it should come from public revenues. This idea excludes the
assumption that practically no compensation need come out of public revenues.
The juxtaposition of the words "wholly or partly" and the disjunctive
between them emphasize the same idea. It will be incongruous to say that public
revenue shall contribute rupees one lakh or one pie.
The payment of a part of a compensation must
have some rational relation to the compensation payable in respect of the
acquisition for a public purpose. So construed "part" can only mean a
substantial part of the estimated compensation. There cannot be an exhaustive
definition of the words "substantial part of the compensation". What
is substantial part of a compensation depends upon the facts of each cue, the
estimate of the compensation and other relevant circumstances. While a court
will not go meticulously into the question to strike a balance between a part
and a whole, it will certainly be in a position to ascertain broadly whether in
a particular Case the amount contributed by the Government towards compensation
is so, illusory that it cannot conceivably be substantial part of the
consideration. There is some conflict of view 827 on this question. The House
of Lords in Chatterton v. Cave (1) defined the word "part" in the
context of the provisions of the Dramatic Copyright Act. The words in the
statute were "Production or any part thereof". The plaintiffs therein
were the proprietors of a drama called, "The Wandering Jew" and it
was alleged that the defendant produced a drama on the same subject. It was
found that the drama of the defendant was not, except in respect of two scenes
or points, a copy from, or a colourable limitation of, the drama of the
plaintiffs. In that context. the House of Lords construed the relevant words
"production or any part thereof." Lord O'Hagan observed :
" 'Part', as was observed, is not
necessarily the same as "particle" and there way be a taking so
minute in its extent and so trifling in its nature as not to incur the
statutable liability." This decision may not be directly in point, but the
construction placed upon the expression "Part" is of general
application. In the context of that statute, the court found that the
Legislature clearly intended by the words "any part' a real substantial
part. A division Bench of the Madras High Court, consisting of Spencer and
Ramesam, JJ., directly considered this point in Ponnaia v. Secretary of State
(2) . There, a total sum of Rs. 5,985 required for the acquisition of the property
of the appellant therein and the Government contributed from Provincial
revenues an amount of one anna towards that compensation. The learned Judges
held that it was an indication of the illusory character of the object for
which the provisions of the Act had been made use of Adverting to the argument
that any small contribution by the Government (1) (1878)3 App.Cas.483,498. (2)
A.I.R. 1426 Mad. 1099.
828 would satisfy the requirement of s.6 of
the Act, Ramesam, J., observed at p. 1100 :
"We think that the Legislature, when
they passed the Land Acquisition Act, did not intend that owners should be
deprived of their ownership by a mere device of private persons employing the
Act for private ends or for the gratification of private spite. or malice."
These are weighty observations of a judge of great experience, who was also the
Government Pleader before he became a judge of the, Madras High Court. The
observations also indicate the statutory object in insisting on a substantial
contribution from public revenues, for a strict insistence thereon would
prevent to a large extent the abuse of power under the Act. But unfortunately
the correctness of this decision was not accepted by another division Bench of
the same High Court, consisting of Odgers and Madhavan Nair, JJ., in Senja
Naicken v. Secretary State for India (1). I have carefully gone %rough the
judgment in that case, and, with great respect to the learned Judges, I cannot
see any acceptable reasons for departing from the earlier view of the same court.
Odgers, J., concentrated his criticism of the earlier judgment more on the
reliance by the earlier Bench on the decision of the House of Lords than on the
intrinsic merits of the decision itself. It is true that the learned Judges in
the earlier decision relied upon the observations of the House of Lords, but
that was only. in support of their conclusion why the expression
"part" should not be understood as a particle. But the main reason
they gave was that having regard to the object of that proviso, the Legislature
in using the word "part" could have only meant a substantial part or
otherwise the object would be (1) (1926) I.L.R. 50 Mad. 308.
829 defeated and the abuse of power which it
intended to prevent could easily be perpetrated under the colour of the Act.
The second reason given by Odgers, J. was
stated by the learned, Judge thus at p.314 :
" I invited the learned Advocate for the
appellant to say where a particle" would end and "part" begin of
this sum of Rs. 600. It is true an anna is a very small part of Rs.
600. But nevertheless it is a part.
This adherence to the strict letter in
complete disregard of the spirit of the section certainly defeats the purpose
of the legislation. The word "'partly" in the proviso should be
construed in the setting in which it is used and not in vacuum, as the earned
Judge sought to do. The third reason the learned Judge gives for his conclusion
was stated at p.
315 thus "Suppose on appeal the
compensation had been enhanced. There is no doubt the Government would have to
defray the extra sum out of the public revenues and having once undertaken the
acquisition they could not call on the constituents again." This comment
again I in my view, is beside the point. It is not the duty of the Government
to meticulously fix a figure ; it may agree to bear a definite proportion of
the compensation that may ultimately be awarded to a claimant and in that even
subsequent variations by hierarchy of tribunals would not cause any difficulty,
for the proportion would attach itself to the varying figures. That apart, it
need not be a particular fraction of the compensation ultimately awarded. If
the Government agrees to contribute a substantial part of the 830 estimated
compensation that would meet the requirements of the section. The other learned
Judge, Madhavan Nair, J., in substance agreed with the judgment of Odgers, J.,
and did not disclose any additional reasons for differing from the decision of
the earlier Bench. In my' view, the decision in Senja Naicken v. Secretary of State
(1) is not correct.
These two were considered by a Full Bench of
the Madras High Court in Suryanarayana v. Province of Madras(2). There Sir
Lionel Leach, C.J., delivering the judgment of the Full Bench, noticed the
judgment of the division Bench in Ponnaia v. Secretary of State (3) and the
criticism offered on the judgment by the later division Bench in Senja Naicken
v. Secretary of State (1) and observed :
"We are in entire agreement with this
criticism." Then the learned Chief Justice proceeded to observe:
"In interpreting the proviso we can only
have regard to the words used and, in our judgment, it is sufficient compliance
with the proviso if any part of. compensation is paid out of public funds. One
anna is a part of the compensation. It is true it is a small part, but it is
nevertheless a part." This literal interpretation of the word
"part" de hors the setting in which that word appears in the section,
in MY view, makes the condition imposed on the exercise of the jurisdiction by
the Government meaningless and also attributed to the Legislature an intention
to impose a purposeless and ineffective (1) (1926) I.L.R. 50 Mad. 308. (2)
I.L.R. (1946) Mad.
(3) A.I.R. 1926. Mad. 1099.
831 formality. For the reasons already given,
I cannot accept the correctness of this judgment. I, therefore, hold that
unless the Government agrees to contribute a substantial part of the
compensation, depending upon the circumstances of each case, the condition
imposed by the proviso on the exercise by the appropriate Government of its
jurisdiction is not complied with. In the instant case it is impossible to say
that a sum of Rs. 100 out of an estimated compensation which may go even beyond
Rs. 4,00,000 is in any sense of the term a substantial part of the said
compensation. The Government has clearly broken the condition and, therefore,
it has no jurisdiction to issue the declaration under s. 6 of the Act.
In this view it is not necessary to express
my opinion on the other questions raised in this case.
In the result the said notification is
quashed and respondents 1 to 5 are hereby prohibited from giving effect to the
said notification and taking any proceedings there under.
It is common case that the order in Writ
Petition No. 246 of 1961 would govern Writ' Petitions Nos. 247 and 248 of 1961
also. A similar order will issue in these two petitions also. The respondents
will pay the costs of the petitioners in all the petitions.
By COURT : In view of the majority opinion
the Court dismissed the Writ Petitions with costs. There will be one set of