Report No. 10
37. (a) Public purpose.-
Public purpose is not defined in the Act. There is only an inclusive definition which relates to village sites in districts. In other respects, there is no indication in the Act of any test for determining whether a purpose is a public purpose or not. A large number of suggestions have been received by us urging that we should clearly and exhaustively define the term 'public purpose'. In an ever changing world, the connotation of the expression 'public purpose' must necessarily change. If a precise definition is enacted, it would become rigid and leave no room for alteration in the light of changing circumstances. It would leave no room for the courts to adjust the meaning of the expression according to the needs of the times. As observed by Alfred D. Jahr on Eminent Domain1 dealing with 'public use'-(an expression used by the American Constitution):
"Public use has not been defined by the courts for the reason that to formulate anything ultimate, even though it were possible, would, in a changing world be unwise, if not futile. The law of each age is ultimately what that age thinks should be the law."
Later he says:
"We are living in a rapidly changing world. The atomic age is upon us with its cataclysmic effects on the order of society. Our fundamental law is not static. Quite the contrary, it is dynamic and progressive. It therefore does, as it must, respond to the changing times. It is impossible to enumerate all the uses which may be classified as public uses to authorize an acquisition of private property by eminent domain. Such a venture would not only be impossible, it would be equally futile. The courts have repeatedly and wisely refused to define 'public use' and for cogent reasons. Any definition would be unworkable, limited, and circumscribed. What may become a 'public use' in the future cannot be foretold by mortal man. All we can do is to venture a prediction, as certain as day follows night, that there will be many public uses in the future that we never dreamed of at the present time:2
To the same effect are the observations of Das J. (as he then was) in the State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 (290).:
"With the onward march of civilization our notions as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stem the forward flowing tide of time and must necessarily give way to the broader notions of the general interest of the community. The emphasis is unmistakably shifting from the individual to the community.
This modern trend in the social and political philosophy is well reflected and given expression to in our Constitution.The ideal we have set before us in Article 38 is to evolve a State which must constantly strive to promote the welfare of the people by securing and making as effectively as it may be a social order in which social, economic and political justice shall inform all the institutions of the national life. Under Article 39, the State is enjoined to direct its policy towards securing, inter alia, that the ownership and control of the material resources of the community are so distributed as to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
The words 'public purpose' used in Article 31(2) indicate that the Constitution uses those words in a very large sense. In the never ending race the law mast keep pace with the realities of the social and political evolution of the country as reflected in the Constitution. If, therefore, the State is to give effect to these avowed purposes of our Constitution we must regard as a public purpose all that will be calculated to promote the welfare of the people as envisaged in these Directive Principles of State Policy, whatever else that expression may mean."
1. P. 16.
2. P. 25.
38. The expression 'public use' in the Fifth Amendment of the American Constitution received a narrow interpretation in the beginning but later pronouncements have put a more liberal interpretation upon it.1
1. See Willis on Constitutional Law, pp. 817-820, 1936 Edn., and Nicholas on Eminent Domain, Vol., 2, pp. 434 and 445.
It is, in our view, neither possible nor expedient to attempt an exhaustive definition of public purposes. The only guiding rule for the determination of its meaning is that the proposed acquisition or requisition should tend to promote the welfare of the community as distinct from the benefit conferred upon an individual. The mere fact that the immediate use is to benefit a particular individual would not prevent the purpose being a public one, if in the result it is conducive to the welfare of the community. The question is exhaustively discussed in Thambiran Padayachi v. State of Madras, AIR 1952 Mad 75, by Venkatarama Aiyar J. All that can, therefore, be attempted in a legislation of this kind is to provide an inclusive definition, so as to endow it with sufficient elasticity to enable the courts to interpret the meaning of the expression 'public purpose' according to the needs of the situation, and this is what we have attempted.
39. There is yet another important aspect of 'public purpose', to which reference is necessary. In India, acquisition may be made either for the benefit of the Union or the State, or for the benefit of public or local authorities. 'Local authority' as defined in the General Clauses Act means "a municipal committee, district board, body of port commissioners or other authority legally entitled to or entrusted by the Government with the control or management of municipal or local fund". Public authorities will include State-owned or State-controlled corporations. Besides these, acquisition is also permitted under the existing law for the benefit of companies and co-operative societies or friendly societies. Acquisition may also be necessary for the benefit of public charitable trusts such as hospitals or educational institutions managed by trusts created for the purpose. There are also town planning authorities and town improvement boards in various States and, perhaps, there will be authorities constituted for the development of rural areas also.
40. The machinery provided under the existing law in India for acquisition for the benefit of such authorities is different from that obtaining in England. The procedure under our law is that the body for whose benefit the acquisition is necessary, approaches the Government and the Government sets the law in motion, acquires the lands under the machinery provided by the Act and transfers it later to the person or body of persons for whose benefit the acquisition is intended, after receiving the compensation payable together with the expenses incurred for the acquisition.
Under the prevailing law, in England there is a broad distinction between what are known as 'statutory undertakers' on the one hand (such as a railway company, or a water company or a gas company), and the Government departments or local or public authorities on the other, in regard to the power to acquire and the principles of compensation applicable. In the former case, the power to acquire is conferred by a special statute, and the Act conferring the power of acquisition specifies the land to be acquired. The principles of compensation applicable in such a case are contained in section 61 of the Land Clauses Act, 1845, which are analogous to those in section 23 of the Indian Act.
In the case of Government departments or local or public authorities and some of the statutory undertakers to which the Acquisition of Land (Authorisation Procedure) Act, 1946 has been extended by the Town and Country Planning Act, 1947, the acquiring authority possesses the power of acquiring land in general, but authorization by the Government for the exercise of such power is necessary. The appropriate Government authority confirms the proposal for the acquisition of a particular piece of land after following the prescribed procedure which gives to the persons affected an opportunity to be heard with a right of .appeal to the Courts in certain cases.
41. Under the Indian law, however, it is possible to acquire land even when the authority for whose benefit it is acquired has no statutory power of acquisition, provided the purpose for which the acquisition is intended is a public purpose. The emphasis, therefore, under the Indian law is on the public purpose, while under the English law the acquiring authority has the statutory power to acquire particular land, or having a general statutory power of acquisition, has to seek the authorisation of the Government to acquire a particular piece of land.
42. The procedure for acquisition of land under the English law is complicated and involves considerable delays. It, therefore, affords no assistance in the solution of the problems confronting us and the best course, in our view, is to adhere to the procedure under the Indian Law which is simpler and, at the same time, endeavour to provide for its speedy operation.
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