Smt. Somavanti And Others v. The State Of Punjab And Others (1962) — Supreme Court judgment

West Ramned Electsio Distritution Co. Lid

. State of Madras

——_

Gojenéragadkar J,

Mav 2, taken by the Madras High Court and we see no reason to differ fromit. Therefore, the challenge to the validity of the Act on the ground that its important provisions contaitied in section 5 offend against Art. 31 (2) must be rejected. That being

. our view, we must held that the High Court was right in rejecting both the writ petitions filed by the appellant. Op that view, it is unnecessary to consider whether appellant would have been entitled to get the relief of possession or mesne profits which it purported to claim by its two petitions.

The appeals accordingly fail and are dismissed with costs. One set of hearing fees.

Appeals dismissed.

SMT. SOMAVANTI AND OTHERS v. THE STATE OF PUNJAB AND OTHERS (And Connected Petitions)

(B. P. Srvwa, C. J., K. Suppa Rao, N. RasagoraLa AyyanGak, J. R. MupHOLKAR and TL. VENKATARAMA ArIyvak, JJ.)

Land Acquisition—Public pur pose—Government declaration as to public purpose—lf justiciable—Conclusive evidence” “Conclusive proof”, Meaning of —Compeneation—Government’s contribution of cost—If should be substantial—Indian Evidence Act, 1872 (1 of 1872), 4.3, 4—Land Acquisition Act, 1894 (1 of 1894), a8. 4, 5A, 6—Conatitution of India, Art. 14.

In February, 1961, the petitioners purchased over six acres of land situate inthe Stateof Punjab for asum 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

$ ek ranges of refrigeration compressors and ancillary equipment, requested the State of Punjab for the allotment of an appropriate site for the location of the fattory. In the official Gazette of August 25, 1961, was published a notification of the Governor of Punjab dated August 18, 1961, unders. 4 of the

‘Land Acquisition Act, 1894, to the effect that the land belong- ing to the petitioners was likely to be needed by the Government at public expenses fora public purpose, namely, for setting up afactory 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 fora public purpose either under s. 4 ors. 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 Contitution 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 tne notifications under ss.4 and 6 could not have been made simultaneously and were, therefore, without efficacy.

Held. (per Sinha, CQ. 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

Somavunti v. State of Punjab

—a

Somavaati

‘. Stote of Prnfad

776 SUPREME COURT REPORTS (1963)

Government to be satisfied about and the declaration of the Government would be final subject to one exception, n{mely that where there was a colourable exercise of the power the declaration would be open to challenge at the instance of the aggrieved party.

Hamubai Framjee Petit v. Secretary of State for India, (1914) L. R. 42 I. A. 44. and RB. L. Arora v. Tha 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 was no difference between the effect of the expression ‘conclusive evidence” ins. 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 fron the proof of another.

(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 the abstract.

(¢) 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., [1952] S. C-R. 889, Babu Barkya Thakur v. State of Bombay & Ors., [1961] 1 S.C. R. 128, and State of Bombay v. Bhanjt Munji & Anr., [1955] 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 Constitution.

(6) that as s. 5A was out of the way the publication in the same 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 , disenting), that the notification dated Avgust 19, 1961, under s. 6 of the Land Acavsisition Act, 1894, was not invalid on the ground that th:

amount contributed by the State toward§ the cost of the acquisition was only nominal compared to the value of the ~Y 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 uction of the State was a colourable exercise of power.

~y Sanja Naicken v. Secretary of State, (1926) I. L. R. 50 Mad. 308 and Vadlapatila Suryanaryana v. The Province of Madras, 1. L. R. [1946] Mad. 153, approved.

_ Ponnaia v. Secretary of State, A. 1.R. 1926 Mad. 1099, disapproved.

Chatterton vy. Gave, (1878) 3 App. Cas. 483 and Maharajah Luchmeswar Singh v. Chairman of the Durbhanga Municipality, (1890) L. R. 17 1, A. 90 held inapplicable.

Per Subba Rao, J.—in interpreting the proviso to s. 6 (1)

of the Acta reasonable meaning should be given to the

“ expression “wholly or partly.” The payment of a part of a y 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 thata sum of

Rs. 100 out of an estimated compensation which might go

-even beyond Rs. 4,00,000 was in any sense of the terma 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 the Act.

al ' .

. ORtIanaL Jurisprorron : Petiti . 24 248 of 1deT | etitions Nos. 246 to

_ Petitions under Art, 32 of the Constitution of India for the enforcement of Fundamental Rights.

G. 8. Pathak, Rameshwar Nath, §.C. Andley oat and P. L. Vohra, for the petitioners (in petition No. 246 of 1961), P ™ (e petition No

"3962

Semavants

¥.. State of Punjab

Somaoanti

¥. State of Punjab

Mutheliar J.

Rameshwar Nath, S.N. Andley and P. L. Vohra for the petitioners (in petitions Nos. 247 and 248 of 1961).

S. M. Sikri, Advocate-General for the State of Punjab, N. 8S. Bindra and P. D. Menon, for respondent No. 1 (in all the petitions).

S. P. Varma, for respondent No. 6 (in all the petitions).

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, Mudholkar and Venkatarama Aiyar, J J., was delivered by Mudholker, J.

MupHoLkar, J.—The petitioners who have acquired over six acres of land by purchase for Rs. 4,590,009 in February. 1961, under five sale deeds and one lease deed claim to have done so for the purpose of establishing a paper mill ia collaboration with Messrs. R. S. Madhoram and Sons who had been granted a licence for the establishment ofa 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 Now 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.

-28.C.R. SUPREME.COURT REPORTS 779

Respondent No.6 requested the State of Punjab for the allotment ofan 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 intor 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 ofthe 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. Ownets 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 adsufec by the Deputy Conimissioner 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 fand measuring approximately 70,00) sq. yards contiguous to the Jand 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 petition;

ers 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 rétting up a factory for manufacturing various ranges of refrigeration compressors‘and ancillary equipment. -It accordingly notified that the land in the locality described

Somavariti ve State of brinfab

Semarenti v. State of Punjab

Mudhekar J .

780 SUPREME COURT REPORTS.-[1963} in the notification was required for the aforesaid purpose. Similarly it authorised the Sub-Divisional Officer and Land Acquisition Officer, Palwal, to enter upon and survey the land iu the locality and todo all other acts required or permitted by 8.4 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 tothe effect that he was satisfied that the land specified in the notifioation was required by Government at public expense for public purpose, namely, for setting upa factory forthe 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

28.0.R. SUPREME COURT REPORTS — 781 they have entered into an arrangement with Messrs. R. S. Madho Ram & Sons who’ hold induatrial licence No. 1/24 (1)/N-60/62. The proposed industry, according to them, would employ about 200 people. The industry they wish to start isa new one s° 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 Andhra Pradesh.

Tt may be mentioned that some time after the notification was published, that is, on Septem-

* ber 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. J 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 respondeht 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 is

Somavants . We State of Punjrb

" Mudboiker J.

Somavanti v. Stste of Panjad

Mudholkar J, contended that the petitioners would not be entitled to any relief whatsoever. [hey would of course got compensation for the land as determined by the nd 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 as.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 3.6, 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 aoquired 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 ccmpensation. 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 thereore 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 loxs 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 acoess to the main road and as the land ia 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 contemplation is acutely felt ia India inasmuch amanufacture of compressors and the ocompones nts of big and emai] air-conditioners, refrigerators,

P* sy

2 S.C.R. SUPREME COURT REPORTS 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 asa 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 Apri] 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 tg be shifted from West Bengal to Panjab: 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 affidavite and the rejoinder affidavits except to some

Sothavanti ve State.f Punjab

Mudholker J.

Somavaati Vv. State of Punjab Mudholkur J.

portions of the additional affidavit filed by Mr. M.R. Bhagat, Under Secretary on behalf of the respondent No. 1. We are referring only to those portions whioh were relied on during the argunents 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 licenve 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. Sinoe 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 Gentral Government, been converted into a pablic 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. whereunder 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 colJaborators 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

28.0.R. SUPREMECCURT REPORTS 785 personne! 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 in India. Then it stated ‘the products that are to be manufactured by the | respondent till now were being imported into India from foreign countriesand goods worth about Rs. 3,83,70,000 in 1960 and for the first ton months in 1961 Rs. 3,55,50,000 were imparted by the various licensees holding import licen- ces.” 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 5.4 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

Somavanti v. State of Punjab

Mudholkiy J,

786 SUPREME COURT REPORTS [1963)

acquiring property from one pergon and giving itto another. -

(2) The alleged contribution of Rs. 100 made by the Government ia 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 sum compared to the value of the property that it cannot raise an inference of Govern. ment participation in the proposéd aotivity.

(3) That the property ia 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 the acquisition.

(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 Jatter to the former, has violated the guarantee of equal protection of. law provided by Art. 14 of the Constitution.

(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 fora 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 t fd

28.0.R ‘SUPREME COURT REPORTS 787

‘partly. -at ‘public expense or not. If it ‘is 80, ‘then, of ‘course, the petitions «must succeed. Therefore, it is the. first two contentions raised by Mr.‘Pathak ‘which ‘primarily ‘need ‘our considerstion,

-According to learned counsel ‘for the peti- tioners the statements made in the -affidavits on behalf of the State as well .as .on ‘behalf of the -respondent No, 6.makeiit perfectly clear that the ‘land is .being -acquired for the respondents :No.«6. ‘Reliance iis 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 whichis -being.acquir- ©

-ed.is to come.out.of. the pockets mot of the State Government but the. respondent..No.'6 jitself. No ‘doubt, the -Government-has said that it’yhas.sanctioned the payment of Rs. 1U0:towards-the .pay-

-ment’ of compensation -but that.is only an insignifi-. - cant fraction .of the totalamount of.compensation that would be payable in respect .of.these lands, the.petitioners themselves:having paid Rs. 4,5U,000to-the persons from whom .they acquired these - lands.

‘On behalf of the respondents the learned

AR6E -

——

- ‘Somavonti

‘ve State of Punjab

Mudholker J.

‘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.ornot. ‘Alter-

“~natively ’he conténded “that the ‘land ‘is ‘being

‘acquired ‘for a ‘public ‘purpose ‘because the dbject

‘ofthe acquisition isto establish a.new industry

Somavent v. 5 ate of Punjed

788 SUPREME COURT REPOR'S [1963]

and do away with imports of refrigeration equipment and to enable technical education to be imparted to Indian personnel ina 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 factory. 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 anti-biotics 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 industrjal 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 Encyclopaedia 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 Encyclopaedia Britannica, p. 745 wherein facilities for providing refrigoration 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

28.0R. SUPREME COURT REPORTS 789 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-Gencral 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 but also for securing the industrial advaneement of the country, enabling the citizens to obtain technical sducation in a new field, relieving to some ¢xXtent' the pressure of unemployment and soon. For all these reasons he contends that the acquisition must be deemed to be for a publio purpose even though the bulk of the compensation for the acquisition will come from the- pockets of respondent No. 6,

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 ig strenuously contended on behalf of the petitioners that sub-s,3 of s,6 does not debar this Court from cunsidering whetber 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 “conulusive proof” and then contended that the declaration is conclusive evidence only of a need and nothing more.

A distinction is sought to be made between * 5 . + “conclusive proof” and ‘conclusive evidence” and

Somavants v. Staite of Punjab

—— ee

Mudholker J,

‘Somcnanti

Mudholkar J. \ 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 is established. 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 tobe existence of - the other'fact is not shut out. In supportof 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.isrregarded .as proof .of another. But ‘it says nothing about what other laws may provide. There are a: number of -‘ilaws which :make certain facts 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. IL) {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,—

Vo. deals with the.question.as to what kind of evidence is permissible to ke adduced for ,that ;purpose .and

- states in. s. 3 when a fact is said to ba proved. ‘That.section reads thus : .

»,

28.0.2: SUPREME COURT REPORTS 791

‘Evidence’ means and includes—

(1) all statements which the court permits or requires to be made befare 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 docu- ments are called documentary evidence. so

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

Somavants ¥. State of Punjab

———=

1962, vy, State of Punjab

Mudhelkar J.

XN conclusive proof. Statutes may use the expression ‘conclusive proof’ where’the object is to make a fact non-justiciable. But the legislature may use some other expression such as ‘conclisive evidence’ for achieving the same result. There is thus no difference between the :effect of the expression ‘conclusive evidence’ from that of ‘couclusive proof’, the aim of both being to give finality to the establishment of the existencd ‘of a fact from the proof 6f another. fos & i t

Learned counsel contends that it is open to the Court to examine whether the action of the executive, oven 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 # public purpose. In support ofthis contention he has relied upon the decision in State of Bihar v. Maharajadhiraja Sir Kameswarsingh of Darbhanga(’). There, Mahajan, J. {as he then. was,) hasexpressed the view that the exorcise of power to acquire compulsorily is conditional on the existénce 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, howcver, was not the view of the other learned Judges who consitituted 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 .98%). Similarly Patanjali Sastri, C.J., has also taken the view that the existence of public purpose is an express condition of el. 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) (1982) S.C.R. B89 ,935,

~ RQ '

28.0.2. . SUPREME COURT REPORTS 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 (") 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 protscted’ from the operation of

‘Art. 31(2) by the provisions of Art. 31(5)(a). It also held, following the decision in the Siate of Bombay v. Bhanji Munji (*?) :and that in Lilavat: Bai v. The State of Bombay (*) 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 cantiot 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 (*?) what this Court has held is that for a right under Art. 19(1)(f) to hold 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) (1955) 1 S.C.R. 777. ‘ (3) (1957) S.C.R. 7

Somasanti v. Stete of Punjad

Somavanti v. State of Punjub

— ———

Mudhoika: J,

794 SUPREME OOURT REPORTS [1963)

protected from an attack under Art. 31(2) but it will still be invalid under Art. 13({2) if the restric tion 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 evidenee 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 publio purpose as follows :

“the expression ‘public purpese’ 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:”

. ~

28.0.2. SUPREME COURT REPORTS = 795

This is aninclusive 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 vitally concerned.. Then there is

8. 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 ia 8s. 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. ‘Sub-section (2) of s. 5A makes the decision ofthe Government on the objections final. This is followed bys. 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 inthe declaration. Subsection (3) makes the declaration conclusive evidence of the fact that the land is needed for a public purpose or for a company, a8 the case may he. Section 17 of the Act confers special powers on the Government which are exercisable in cases of emergency. Subsection (4) thereof provides

136g Somaranti v. State of Punjeb

— a

Somaganti ve State of Punjab

Mudhoikar J.

that in those oases which fall under snb-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 8.6 in respect of the Jand to be acquired at any time after the publication of the notification under sub-s.(1) of 8.4. 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 Stute of Uttar Pradesh (') 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 8.4 is published a person interested in the land is entitled to object to the acquisitiun. 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 whichit 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 ia 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.

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. 8, 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 tobe : 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 @ coinpany 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 decisionof the Government on the objections final while those of sub-s. (1) of s. 6 enable the Government to arrive at its. satisfaction Sub-section (3) of s. 6gocs further and says that sucha declaration shall be conclusive evidence that the land is needed for a public purpose or for a company.

It is, however, argued by learned counsel that the conclusiveness or finality attached to the dey claration 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 2 public purpose or what is said to be a company is really a company. Sub-section (1) does not effect a dichotomy between “need” and “public purpose ora company”. There is no justification for making such a dichotozay. 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,

Somavanis .

Mudholear J.

Somavcanti v. State of Puajad

Aludhelker J.

798 SUPREME COURT REPORTS [1963)

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, itis entitled to make a declaration. Once such a declaration is made subs. (3)invests it. with conclusiveness. That: conclusiveness 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 conclusivenesa must necessarily attach not merely to the need but also to the guestion whether the purp»se. is a public purpose or what is said to be a company isa 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 acquiasition 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 tbat the conclusiveness would attach only to a need and not to the fact that that need is for a public purpose or fur 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 conclusivencss 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 itis not possible to accept the contention put forward by learned counsel.

Learned counsel put the matter in a slightly different way and said that s.6 (3) presupposes that the jurisdictional fact exists, pamely, that there is a public purpose or the purpose of &@ 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 fora public

- \ ‘ i.

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 acourt from ascertaining whether either of these ingredients of the declaration exists.

It is, however, said that that does not mean that inso far asthe 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 Hamaba: Framjee Petit v. Secretary of State for India (') 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 Governmeut 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 l.ase; it is enough to say that, in my

_ opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in ‘which the general interest of the community, as opposed to the particular

(1) (1914) E.R. 42 LA. 44.

Somavanti Ve State of Punjab Mudholkar

800 SOPREME COURT REPORTS (1963)

interest of individuals, is directly and vitally concerned.”

In that case what was being considered was & re-entry clause in a lease deed and not provisions of the Land Acquisition Act. That clause left it absolutely to the lesgor, the East India Company to say whether the possession should be resumed by it if the land was required tor a public purpose. It. was in this context that the question whether the land was needed fora public purpose was considered. The argument before the Privy Counoil 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:

bed

“That being so, ali 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 publio 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 gaid that the Privy Council have held that the matter is justiciable. It is enough to easy

28... SUPREME COURT ‘REPORTS 401 that that was nota 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 pub- lic 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. (8) of 8.6 says is that the Government's declaration that particular land is needed for a public purpose ora 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 ina compendious way. Public purpose is bound to vary with the times and the-prevailing conditions in a given locality and, therefore, it would not bea practical proposition even to attempt a comprehensive definition of it. It ig: because of this that the legislature: has left it to the Government to say what is a public purpose and also todeclare the need of a given land for a public purpose.

Tt was contended on the basis of the decision of this Court in R. L. Arora v. The State of U.P. (*) 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 mean-

‘ing to be attached to the words “useful to the pub- lic”: oocurring in.ol. (b) of subs. (1) of s. 40 of ‘the

‘Act. Thelend was required by the company to _ enable it to establish its works.and it was contended

_ befere this:Court that the products manufactured

(1) [1962] Supp. 2 S.C.R. $a, rene

Son.avant

Ve. State of Punjab

Muthotker J.

—.

Sen.aosti ve tate of Punsadb

Mudhelkee J, by the company will be useful to-the publio in general and, therefore, the acquisition would be covered by cl. (b) of sub-s. (1) of 8. 40. Negativing this contention Wanchoo, J., who spoke for the Court observed :

‘It is true thet it is for the Government to be satisfied that the work to be constructed this does not mean that itis the Government which has the right to interpret the words used ins. 40 (1} (b) vo... cceeseeceeceeeer ere ees It is the Court which has to interpret what those words mean. After the court has interpreted these worde, 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 aleo 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 satiafaction may not be open to challenge..... ...... We have already indicated what these words mean and if it plainly appears that the Government are satisfied asa 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. Inthe 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

- business, that is all that is required~by the relevant words i in 88. 40 and 41”.

It was no doubt argued before the Coart 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 deelaration under s. 6 1({1) conelusive 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 8.6 (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. therefore, instead of assisting the petitioners it in fact assists the respondents. No doubt, in so far as an acquisition for a company is conoerned 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

8. 40 (1) of the Act. The Government oan consent to the making of a declaration unders. 6 (1) after it is satisfied under s. :41 about ‘the fact that the land is required for a company for.the purposes set

. out in cl. (a) and (b) of that section. But the dec- laration made thereafter is confined only to’ one matter and that is that the land is required fora company and nothing more. The question whether in fact the land is required by the company for the purposes set out in cl. (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 circams- . cribed and, therefore, the Government is expected — to exercise it with due regard to the limitation pla- ced upon it. Bat it dooa aot follow that sab-s, (3)

Somacantt Vv. State of Punjab

— ee

Muadhelkar J.

Somapeati v. State of Pungab of s. 6 makes the declaration conclusive evidence not only of the fact that the land is required fora company but also of the fact that the land is required by a company for a purpose specified iu a. 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 Bark. ya Thakur v. The State of Bombay ('). There this Court observed :

“It will thus be noticed that the expression ‘public purpose’ bas been vsed in its generic sense of including any purpose in which even a fraction of th: 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. Tho other is Pandit Jhandu Lal v. The State of Punjab (*). Thero this Court has pointed out that the purpose of public utility referred to in as. 40 and 41 are akin tothe public purpose.

No doubt in these decisions this Court stated what, broadly speaking, the expression ‘public purpose’ means. Butin neither case the question | arose for consideration as to whether the meaning to be given to the expression ‘public purpose’ ie 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 satiafied 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) OE BCR. O98. (2) (1963}2. 8 C.R.459.

“Y final subject, however, to one exception. That exception is that if there is a cofourablo exercise of power the daclaration will b2 open tv challenge at the instance of the aggrieved party. Lhe 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 — fora moment the purpose of a company. If it - appears that what the Government is satisied about is not a public purpose but a private purpose or no purpose at ali 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 bea nullity. Subject to this exception the declaration of the Government will be final.

A number of decisiona were cited before us by the learned Advocate-General in support of the contention that the declaration of the Governmeat is final. One of those decisions is Wéjeyesekera v. Festing ('). 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 show: that what the District Court is concerned with is the assessment of compensation, but their Lordships do not desire to rest 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 for a road and the contention was that the Government. did not take the opinion of the Surveyor General as to its fitness (1) (19197 A.6. 646.

Samazznti

Mudhoikar J.

806 SUPREME COURT REPORTS (1963)

4968 for such purpose. On this ground it was contended ... Semovanti that the Governor’s declaration could be questioned. v. But this was negatived by the Privy Council. Sete of Pusjsd = Following this decision in Vadlapatla Suryanarayana Methathar J v. The Province of Madras('} a Full Bench of * the Madras High Court held that a declaration by the Provincis] 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 Shetkh v. Su-Divistonal Officer 7); V. Gopalakrishna v. The Secretary, Board of Revenue, Madras (*); 8S. Jagannadha Rao v. The State of Andhra Pradesh (*); Secretary of State for India in Council v. Akbar Alt (*}. Several other decisions to the same effect, souie 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 io which it has beon held that the question as to what ie a public purpose or whether it exists can be enquired into by the Courts even in the absence of colourable exercise of poweg, because 8. 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 Constitu- ~ -tion and in support of this argument reliance was placed upon the decision in Chudalmuthu Pillai v. State (*); Maharaja Luchmeshwar Singh v. Chairman of the Darbhanga Municipality (');

(1 TLR 119461 Mad. 153. (2) AJR (1954. Assam #).

(3) AIR 19%¢ Mad. 362. (4) ALR IKOAP. 343

(5) (S28, TA R45 21. 443. 8) LLL. (1952) Tra’. Cochin. #88, (7) (UE) TLR. 47 1A. 90. a

_ _ tioners.

“S

28.0.R. SUPREME COURT REPORTS 807

Rajindra Kumar Ruia v. Government of West Bengal ('); Major 8. Arjan Singh v. State of Punjab (?) ;. 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 vase it failed on the ground that there was no fraud and in the ‘second on the ground that the provisions of gub-s. (3) of s. 6 precluded? the court from challeng-

‘ing the validity of the declaration. None of these cases, therefore support the contention of the peti-

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 proteoted by the (1) ALR. 1952 Cale578; (2) LAR. (1958) Punjab 1451,

Somavanti ¢. Stete of Punjcd

Mudtolkar J.

1968 Constitution—to the extent indicated in Art. 31(5)(a) ._ Somaventi and un attack io ita validity on the ground v that iti yes the right guaranteed by Art.: 9(1)(f) Site of Puajae a3 failed. Therefore it is a good and valid law and Mudiiter J. 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 thata 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 @ fraud on the power conferred upon it by the Aot. 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 tv 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 8. (3) notwithstanding.

We were referred by the learned Advocate- General to a recent decision of the House of Lords in Smith v. Hast Kiloe Rural District Council (') 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, o. 49), Soh. I,

Pt. IV, paras 15 and 16. Paragraph 15 (1) of Part IV, Sch. I to the Act provides as follows :

“If any person aggrieved by a compulsory (1) (1986) A.C. 736.

purchase o:der desires to question the validity thereof .................0n 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....... Lesseeeeses Paragraph 16 provides as follows :

“Subject to the provisions of the last foregoing paragraph, a compulsory purchase ordetr......... shal]! not....... be questioned in any legal proceedings whatsoever..............00. a

The land having been made the subject of compulgory 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 oxer- cise 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. deolaration ‘under 8. 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

Somatants ¥. Stats of Punjab

Mudhotkar /.

S owasanti v, State of Pumjed 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. Aocording 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 subs. (1) ofs. 6 the Government ought to have taken a decision that it will contribute towards the acquisition. Inthe 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 satay 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 ‘publio purpose’.

28.08. SUPREME COURT REPORTS 811

It-is no doubt true that the financial sanction

_ for the cont:ibution of Rs. 100as part: of the expenses for acquisition was accorded by the Finance Department on September 29, 1961. No doubt also that a day pricr to the according of sanction this petition had. been admitted. by this Court and a stay order issued. But from these two circumstanees 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 s. 6, however, do not require that the notification made thereunder must set out the fact that the Government. had decided to

_payapart 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 isthen contended that before the Goverment could spead any money. from the public exchequer for acquiring land a provision. has to-be madein ~ 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 criticise the Government. But. that is all. Again, where the expenditure is of a small.

amount like Rs. 100 it may be possible for the Government to make payment from .Contingencies and thus avoid objections of this kind. Whatcver 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 esta- v. State of Puxjab

Mudholka: J,

Semavaati v. f tate cf Puajad

Mudhoiker J.

blishing a refrigeration factory in Punjab was examined at various stages and at different levels ot Government as well as by different ministries end 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-s. (1) of 8. 6 is clear on the point that the land is being acquired at public expense, and the rovisions of sub-s. (3) of s. 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 publio 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 being colourable.

Then itis 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 premits 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 (') which was followed in Ponnaia v. Secretary of State (*). In the latter case the High Court of Madras observed that ‘the Legislature, when tbey 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 Ra. 5, 985”. In that case land was being acquired

(1) ({878) 3 App. Cas. 483, 491,492. (2) A.1. R. 1926 Mad. 1099,

28.0.R. SUPREME COURT REPORTS 813

- for making a road between two villages in ’ Ramnad District. 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 8. 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 ofthe provisions of sub-s. 3) of 8.6 and reliance was placed on the decision in Wijeyesekara v. Festing ('). According to the High Court the fact that the Government’s share in the cost- of acquisition being 1/90,000 part of the amount, there was no rea] and bona fide com- -pliance 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 decisicn in Chatterton’s — case. (*) and pointed out that the House of Lords. were averse to putting an interpretation on the words

“or part thereof” occurring in the: Dramatic

Semacaaté v. State of Purjad make a part to mean a particle. The High:Court :. also referred to the decision in Maharaja Luchme--~ swar Singh's case (*) and held that the acquisition . .

was a colourable exercise of the power conferred by the Act. 7 :

_ High Court in Senja Naicken v. Secretary of State (*).where it was held that the State’s contribution of | one anna out of Re. 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 (*): was ovet-ruled and the - | view taken in Senja Naickens case (*) was approved.

_ (1) (1926) LL.R. 50 Mad. 30%, (7) (1872).3 App. Cas: 483, 491, «92 (3) (1890) L.R, 17 L.A, 90. ~ (4) (1926, TL.R. £0 Mad, 308." (

(5) ELL.R. [1946] Mad. 153, 6) A. I. R. 1926 Mad. 1099.

Somevanti

Vv. State of Punjad

Mudholior J.

814 SUPREME COURT REPOKTS [1963}

Chatierton’s case (‘) 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 proteotion was restricted only to the whole ofthe work and did not extend to portions of those work. The Dramatic Copyright Act also ovontained a provision directing that infringement of the copyright would entitle the proprietor to damages of not less than 40 shillings. {[t was suggested that these differences indicated an intention tu 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 cock in ‘Hamlet’, or the introduction of @ line in the dialogue, might be held to be an invasion of the copyright entitling plaintiff to 40s. damages and consequently, ag the Jaw stood 1 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 i!) 187%) 3 App. Cas. 483, 491,492.

boy

\- the ,

2S.C.R. SUPREMECOURT REPORTS _ .815 justifying an action at law, the position of dramatic performarce 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 reproducting a part of a book”’. (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 ao =k a taking so minute in its extent and so trifling in its nature as not to incur the statutory

- liability.” ' , Ff

It is clear, therefore, that the analogy of Chatterton’s case (') cannot possibly apply to a. case under the Act. As was pointed outin Senja Naicken’s case (?): ots ; “Admittedly both of the litigants had derived their compositions from a common source and it stands to reason that before you can compel a mon to pay damages for stealing the product of your brain, time and labour, you mut 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 jour brain. Otherwise......one might go to the absurdity of objecting to aman using the same words

(1) (1878) 3 App Cas. 483, 49!,492. (2) (1926) LLLR. 50 Med. 308.

?. State of Punjab Mudholkar J.

Semavanti vv. State of Puajed

Mudiolkar J.

though in a different collocation as you have done.”

With these ob ervations we agree.

Now, as regards Maharaja Luchmeswar Singh's case ('). The facta were these. ‘he plaintiff's land was under the management of the Court of Warde during his minority. A notification under s. &!) 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 into 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 courte 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 & 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 Ponnata’s case (*) we fail to sce. This case is also relied on before us on behalf of the petitioners and we have refered to it earlier in this Judgment. It has noth. ing whatsoever to do with the question of contribu. tion by the state towards the cost of acquisition,

(1) (1890, L.R. 17 L.A. $0, (2) AUR. 1626 Mad. 1099.

def

28.C.R.. SUPREME COURT REPORTS 817

We would like to add that the view taken in Senja Naicken’s case (") 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 stare decisis the view taken in Senja

Naicken’s case{') 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 parti- .

cular 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 require- .

ment ofthe 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 privats 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 caid 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 (1) (1926) LL.R. 50 aed. 309, nen

Somavanti v. Stite of Punjab

Samavanti vw. S.ate of Punj 6

Mudaeliar J, 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 8.61) is merely a colourable device to enable the respondont No. 6 to do something, which, under terma of

8. 6(1), could not be done.

“Public purpose” as explained by this Court in Babu Barkaya Thakur’s case (') means a purpose which is beneficial to the community. But whether a particular purpose is beneficial or is likely to be benificia] 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 |.nd 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 rverse or that its action based on it constitutes a rand on its power to acquire land or is a colourable exercise by it of such power.

Further, the notification itself sets out the purpose, fur which the land is being acquired. That purpose, if we may recall, is to set up a factory for the manutacture of refrigeration compressors and

(}) (1961) 18.CR. 128.

28.C.R. SUPREME COURT REPORTS. 819 ancillary equipment. The importance of the undertaking 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 foreiga exchange resources, spread of education, relieving the pressure on unemployment etc., have been set ou\ ia the affidavit of the respondent and their substa: > appears in the ealier part of this judgment. The: ‘idavits have not been controverted and we have, therefore, no hesitation in acting upon them.

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 carry- ing outa 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 manufactur. ing 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 5. 6 was a colourabl.

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

Somacanti

"Stats of Puntod

Sematanti ve. State of Punjed Mudholker J.

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 ia denied on behalf of the respondents that the petitioners are going to establich 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 sucha 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 bas since been cancelled on the ground that Meesrs. R. S. Madhoram and Sons have taken no steps so far for establishing @ paper factory. It is necessary to mention that the petitiopers 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 not entitle Messrs. R. S. Madhoram and: Sons to establish a factory in the State of Punjab, hy

25.0.2. SUPREME COURT REPORTS 821

Apart from that it is always open to the State to fix priorities amongst - publio 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 ® number of cold storages in that. State. The Government would, therefore, be acting reasonably 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 is 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 establish ment of a particular industry isa public purpose. The challenge to the notification based on Art. 14 of the Conatitution 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 Jaw entitling it to make the acquisition. It is pointed out that under sub-s. (1) of 6. 4 the Government has first to notify that

Senewanét ve

State of Punjab Madhelbar J.

19tz

Somavants

BMudholkar J.

822: SUPREME COURT REPORTS (1963)

a particular land ‘is likely to be needed for a public purpose’. Thereafter under s. 5A a person interésted in 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 @ 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 fora public purpose. This is the sequence in which the notifications have to be made. The reason why the sequence has to be fulowed 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 atits satisfaction even ina case where the provisions of a. 54 need not be complied with. Undoubtedly the law requires that notification uader sub-s. (1) of 8. 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 direc ted under sub-s. (4) of s. 17 that the provisions of s. 5A need not be complied with the two notifications, that is, under sub-s. (1) of 8. 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 8. 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 fora 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. 6A be dispensed with. It is, therefore, difficult to see why the two notifioations cannot, in such a case, be made simultaneously. A notification under sub-a. (1) one of 8. 4 is a conditiun precedeut to the making of notification under sub-s. (1) of 6. 6. If the Government, therefore, takes a decision to by id make such @ notification and, there after, takes two further decisions, that is, to dispense with compliance with the provisions of s. 5A and also to declaré that the land comprised in the notification is in fact needed for a public purpose, there is uo

‘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 deolara-

‘tion 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 subs. (1) ofs.4a condition precedent to the publication of a notification under sub-s. (1) of 8.6. 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. 5Ais not in the way there is no irregularity in publishing those notifications on the same day. The serial numbers of the notifications are No. 580y/4 B(1)/61/18765 dated August 18, 1961, and 5309-4 16,1)/61/i8760 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, al] petitions were heard together there will be only one hearing fee.

Somavanti v- State of Punjab

Mudkolker J.

ee emt

Somaventi *. State of Punjed Sybbs Fae J.

824 SOPREME COURT REPORTS [1963}

Sunza Rao, J.—I have perused the judgment prepared by my learned brother, Mudholkar, J. With great respect, I cannot agree.

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 &® sum of Rs. 460,000 in February, 1961, is situate in village Meola Masharajpur, Tehsil Balabhgarh, District Gargaon. On August 25, 1961, the Governor of Punjab published a notification dated August 18, 1961, in the Official] Gazette under 8.4 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 8.6A will not apply to the said acquisition. On the same day, another notification under 3.6 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 September 29, 1961, the Government of Punjab sanctioned an expense of Ra. 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 2.6 of the Act, I do not propose to express my opinion on any other question raised in the case. The material part of 8.6(1) of the Act reads :

‘Subject to the provisions .of Part VII of this Act, when the appropriate Government is cb

28.0.2. SUPREME COURT REPORTS 825 satisfied,-after considering the report, if any, made under section 5A, sub-section (2), that any patticular 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 @ 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 8 pie, even though the total compensation payble. 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

Someventi v. Stete of Punjab

Subba Rao J,

Semevantt State of Prungod Subda fao J.

estimated compensation of say, Ras. 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 been intended. erefore, 4 reasonable meaning should be given to the expression “wholly or partly”. The proviso says that the compensation shal! 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 «f it should come from public revenues. This idea exoludes ths 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 eavh oase, the estimate of the compensation and other relevant circumstances. While a court will not go meticulously into the question to strike a balance between 6 part and a whole, it will certainly be in & 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 issome conflict of view

* aaa -7 hw

2 8.C.R. ‘ SUPREME COURT REPORTS 827 on this question. The House of Lords in Chatterton v. Cave (') 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 onthe same subject, It was found that the drama of the defendant was not, except in respect of two scenes or points, @ copy from, or a colourable imitation 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 may 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(?). There, a total sum of Rg. 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

() (1878) 3 App. Cas, 483, 498. (2) A.LR, 1926 Mad. 1099.

Somavants We State of Punjab Subba Rao J, ross

Semacanti Ve Stats of Punjab

Subba Rae J.

would satisfy the requirement of 3.6 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 publio revenues, for a atriot 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 Odgera and Madhavan Nair, JJ., in Senja Natcken v. Secretary of State for India(’). I have carefully gone through 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 oriticism of the earlior judgment more on the reliance by the earlier Bench on the decision of the House of Lords than on the intrinsic merite 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. $0 Mad. 308.

"$808. SUPREME VOURT REPORTS 8207 defeated and the abuse of power which it intended 1968 to prevent. could easily be perpetrated under the = . colour of the Act. The second reason given by v. Odgers, J. was stated by the learned Judge thus — State of Punjab od at P.3l4 : .. . : Subba Rao J.

“1 invited _ the learned Advocate” _for...the appellant to say. where a ~ “particle” would end and “part” begin of this y sum of Rs. 600. It is.true an anna is a very small part of Rs, 600. But nevertheless it is . & part.” Oo

This adherence to the atrict 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 learned i - Judge sought todo. 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, 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 . @e 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 .

ay ee eee le fees 2 a a er eT ev Ie

Somatenti

Rae J.

estimated compensation that would meet the requirementa of the section. The other learned Judge, Madhavan Nair, J., in substance agreed with the Jndgment 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 Natcken v. Secretary of State ()) is not correct. These two were considered by a Full Bench of the Madras High Court in Suryanarayana v. Provinee of Madras(*). There Sir Lione] Leach, C.J., delivering the judgment of the Full Bench, noticed the judgment of the division Benoh in Ponnata v. Secrelary of State (°) and the criticism offered on the judgment by the later division Bench in Senja Natcken v. Secretary of State (') 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 attributes to the Legislature an intention to impose a purposeless and ineffective

(1) (1926) LL-R. 50 Mad. 308. (2) TL.R. (1946) Mad. 158, 158. (8) A.LR. 1926. Mad. 1099.

formality. For the reasons already given, I cannot accept the correctness of this judgment. I, therefore, hold that unless the Government agrees to contri- - bute 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 impossi-. ble 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.

To 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 thereunder.

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 hearing fee. |

Petitions dismissed.

Somavanti We State of Punjab

Subba Rao J.

Text of the official Supreme Court Reports (S.C.R.) edition, extracted from the court’s PDF. Page headers and margin letters have been removed; a stray one may remain inside a paragraph. For citing, rely on the official PDF.

Smt. Somavanti And Others v. The State Of Punjab And Others

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