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PETITIONER: LAND ACQUISITION COLLECTOR & ANR.

       Vs.

RESPONDENT: DURGA PADA MUKHERJEE & OTHERS

DATE OF JUDGMENT27/08/1980

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA

CITATION:  1981 SCR  (1) 573        1980 SCC  (4) 271

ACT:      Land Acquisition Act-Section 6-Declaration that land is required for  a public  purpose-If conclusive  evidence-Mala fides and  colourable exercise  of power-Burden  of proof-On whom lies-Burden  of  proving  that  land  acquired  is  not suitable for industrial activity-On whom lies.

HEADNOTE:      The  State   Government  issued  a  notification  under Section 4  of the Land Acquisition Act stating that the land referred to therein was needed for a public purpose, namely, for expansion  of the factory of a Company at the expense of the  company.   On  the  respondents’  objections  that  the purported purpose  was not a public purpose in that the land was being  acquired for  the benefit of a company, the State Government issued  another notification  in respect  of  the same land  as also  some more land stating that the land was needed  for   industrial  development   at  public  expense. Objections were  again raised by the land owners that though ostensibly the  purpose was a public purpose in truth it was a private  purpose, namely, for the benefit of a company. In cancellation of the first notification the Government issued another notification under section 6.      Dismissing  the   respondents’  writ   petitions  under Article 226  a single  Judge of the High Court held that the industrial development  of a particular area was in itself a public purpose  and no  further details need be given in the notifications.      On appeal, a Division Bench of the High Court held that although  a  declaration  under  section  6  was  final  and conclusive as  to the  need for  acquisition and  as to  the purpose being  a public  purpose, the  aggrieved party could challenge a declaration only on the ground of mala fides and colourable exercise of power and that in the instant case no such  allegation  had  been  made  out.  The  appeals  were, however, allowed  on the  ground that  the State  Government failed to  produce evidence that the land was being acquired for a public purpose and not for the benefit of a company.      Allowing the appeals. ^      HELD: The  High Court erred in accepting the appeals in view of  its finding  that mala fides or colourable exercise

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of power  on the  part of  the State Government had not been established.      1.    It  is well-settled  law that a declaration under           section 6  of the Act shall be conclusive evidence           that the  land is needed for a public purpose, the           only exception  to this being that the declaration           was issued  mala fide or in colourable exercise of           power. The third notification 574           in this  case had to be taken at its face value in           so far as the purpose was concerned. [577B; 578B]      2.    The  burden of  proving mala  fides or colourable           exercise of  power is  on the  party claiming  the           benefit of  the exception, namely the respondents.           This  burden  could  not  be  held  to  have  been           discharged by  a mere  allegation in  that behalf.           [578H]      3.    If  the argument  that it  is for  the  State  to           satisfy the  Court about the nature of the purpose           for which  the land  is sought  to be  acquired is           accepted the  whole object  of the provision under           which the  conclusive presumption has to be raised           in regard  to the  nature of  the purpose would be           defeated. It  cannot, therefore, be held merely on           the strength  of  the  absence  of  production  of           documentary evidence  by the  State that  the onus           (which rested heavily on the respondents) to prove           mala fides  or colourable exercise of power on the           part of  the State Government has been discharged.           [578 H, 579 A-B]      4.    The respondents have produced no material to show           that the  assertion about  the public  purpose  as           stated in  the third  notification was  in correct           for the  reason that  the acquired  land  was  not           suitable for  any industry  or that  no industrial           activity, except  that  by  a  company,  had  been           undertaken in  the neighbourhood  of the  acquired           area. There is a clear averment to the contrary by           the  State  which  was  not  controverted  by  the           respondents and  that cuts  at the  root of  their           plea of  mala  fides  or  colourable  exercise  of           power. [579 B-C; E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 143-147 of 1970.      From the  Judgment and  Order dated  17-2-1967  of  the Calcutta High  Court in Appeal from Original Order Nos. 123- 127 of 1966.      D.  N.   Mukherjee  and   G.  S.   Chatterjee  for  the Appellants.      S.  Balakrishnan   and  M.  K.  D.  Namboodry  for  the Respondent.      B. Sen and D. N. Mukherjee for the Intervener.      The Judgment of the Court was delivered by      KOSHAL, J.-By  this judgment  we shall dispose of Civil Appeals Nos. 143 to 147 of 1970, all five of which have been filed by certificates granted under article 133(1)(a) of the Constitution by  the High Court of Calcutta and are directed against its  common judgment  dated the  17th February, 1967 accepting five  Letters Patent  Appeals and,  in reversal of the judgment  of a  learned Single  Judge, issuing a writ of mandamus directing  the Land  Acquisition Collector, Burdwan

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and the  State of  West  Bengal  to  cancel  or  withdraw  a notification dated November 3, 1961 and another containing a declaration dated  June 20, 1963 issued under sections 4 and 6 of  the Land  Acquisition Act  (hereinafter referred to as the Act) respectively. 575      2. The  facts leading  to the litigation covered by the appeals before  us may  be briefly  stated. On  February 12, 1960 a notification (later in this judgment called the first notification) was  issued by  the Government  of West Bengal under section  4 of  the Act  stating that  a piece  of land delineated in  the plan  available  in  the  Office  of  the Special Land  Acquisition Officer,  Burdwan, as  well as  in that of  the Director  of M/s  Sen Raleigh  Industries India Ltd. (hereinafter referred to as the Company) at Kanyapur in District Burdwan  was likely  to  be  needed  for  a  public purpose (not  being a  purpose of  the  Union)  namely,  for expansion  of   the  factory   of  the   Company  and   "for construction of  quarters for  its workers and staff and for providing other amenities directly connected therewith, such as school,  play-grounds, hospitals,  markets,  police  out- posts, etc.,  in the  villages of  Sarakdih, Nadiha,  Garui, Hatgaruy and  Panchgachhia, jurisdiction lists Nos. 1, 2, 3, 42/3  and  34  respectively,  Police  Stations  Asansol  and Barabani, Pargana  Shergarh, District Burdwan...... " at the expense of  the Company.  An area  totalling 17.20 acres and belonging to  the  respondents  was  included  in  the  land covered by the notification.      The respondents  preferred objections  to the  proposed acquisition under  section 5A  of the Act to the effect that the land  was not  acquired for any public purpose, that the real purpose  was to  benefit the Company and that the first notification  was   a  fraudulent   exercise  of  the  power conferred by the Act on the State Government.      A fresh  notification (second  notification for  short) under section 4 of the Act was issued on November 3, 1961 in respect of  land measuring  146.90 acres  which was the same land as  was covered by the first notification, except for a small area. The second notification stated that the land was likely "to  be needed  for a  public purpose,  not  being  a purpose of  the Union, namely, for industrial development at Asansol in the villages of Sarakdih, Nadiha, Garui, Hatgaruy and Panchgachhia,  jurisdiction list Nos. 1, 2, 3, 78 and 34 respectively, Police  Stations Asansol and Barabani, Pargana Shergarh, District Burdwan...... at public expense."      The area of 17.20 acres mentioned above was included in the land  covered by  the second  notification also  and the respondents filed  objections under  section 5A  of the  Act over again  contending that  although the ostensible purpose of the acquisition was a public purpose, the land was really sought to  be acquired  for a private purpose, i.e., for the benefit of the Company.      The first  notification was cancelled by an order dated the 26th  April 1962  and,  on  the  20th  June,  1963,  the impugned notification 576 containing the  declaration under  section 6 of the Act (the third notification for brevity) was made. About three months later the respondents were served with notices under section 9 of  the Act  informing them  that the State Government was taking steps  to secure possession of the acquired lands and that  they  could  submit  their  claims  for  compensation. Further representations  were made  by the respondents in an effort to  have  the  acquisition  proceedings  dropped  but without success  and it was then that each one of them filed

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a petition  under Article 226 of the Constitution asking for the issuance  of a writ which was ultimately granted to them by the impugned judgment.      3. The  grounds of challenge taken in all the petitions were identical and were to the following effect:      (a)   Full particulars  of the public purpose for which           the land was sought to be acquired were not stated           in the second and third notifications.      (b)  Both those notifications were issued in colourable           or malafide exercise of the power conferred by the           Act.      Before the  learned Single  Judge ground  (b)  was  not pressed at  the hearing.  In relation  to ground (a) he held that the  industrial development of a particular area was in itself a  public purpose  and no  further  details  of  such purpose need  be given in the notifications issued under the Act. Reliance in this connection was placed on Barkya Thakur v. State  of Bombay(1).  It  was  further  observed  by  the learned Single  Judge that  the proceedings under section 5A of the Act in relation to the impugned notifications had not been completed,  that it  would be  open to  the respondents might possibly  have another  cause of  action in  case  the supply of  information was  refused and  that the  petitions under Article  226 of the Constitution were, therefore, pre- mature. All  the five petitions were in the result dismissed by the learned Single Judge.      4.  In  the  Letters  Patent  Appeals  decided  by  the impugned order  the  argument  advanced  on  behalf  of  the respondents before us that the purpose of the acquisition as stated in the impugned notifications suffered from vagueness and that  they had in consequence been deprived of the right to make effective objections under section 5A of the Act was held to  be untenable.  The Division  Bench noticed that the learned  Single   Judge  had  erred  in  assuming  that  the objections filed  by the  respondents under the section last mentioned had  not been decided by the time of his judgment. The ground that the real purpose of the proposed acquisition was not a public purpose at all but 577 was  to   benefit  the   Company  and   that  the   impugned notifications were, therefore, issued in colourable exercise of the  powers conferred  on the State Government by the Act was strongly  put forward  before the Division Bench and was considered by  it at length. Relying upon Somawanti v. State of Punjab(1), it held that although a declaration made under section 6  of the  Act was  final and conclusive not only in regard to the need for acquisition but also in regard to the purpose being  a public purpose if it was so stated therein, it was open to a person whose land was acquired to challenge it on  the ground  of  colourable  exercise  of  power.  The Division Bench  referred to the pleadings of the parties and took note  of the  fact that  although the  respondents  had clearly taken  up the  position that the real purpose of the acquisition was  not a public purpose but was to benefit the Company, the  Land Acquisition  Collector  had  not  in  his affidavit taken any specific stand on the point but had only made an  evasive denial  of the  plea  put  forward  by  the respondents  and  that  while  it  was  open  to  the  State Government to  produce documentary evidence showing that the purpose for which the land was acquired was a public purpose and not merely to benefit the Company it had failed to adopt that course.  Refusing to hold, however, that there had been a colourable  exercise of  power on  the part  of the  State Government the Division Bench held that the presumption that if such  evidence had been produced it would be unfavourable

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to the  State Government was available to the respondents in the present case. In this connection it further observed:           "After  all,  when  the  proposed  acquisition  is      impugned as acquisition in colourable exercise of power      and there  is a specific allegation of the real purpose      of the  acquisition,  it  is  for  the  respondents  to      disclose,  except   for  good   reasons,  the  relevant      material  or   information,  to  enable  the  Court  to      pronounce  on   the  matter   and  not  to  maintain  a      meaningful silence  or  indulge  in  equivocations  and      double standards, rely on the doctrine of onus of proof      and defect  the course  of justice.  For the  Court  to      permit this  to  be  done  with  success,  will  be  to      stultify itself,  abdicate its functions and abjure its      duties." and on  this finding  accepted all  the five  Letters Patent Appeals.      5. After  hearing learned  counsel for  the parties  we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived  at by  them that  malafides or a colourable exercise of  power on the part of the State Government could not be  held established.  Not only had their attention been drawn to the dictum in Somawanti’s case (supra) but they 578 had in  the impugned judgment extracted certain observations made  therein  by  Mudholkar,  J.,  to  the  effect  that  a declaration made under section 6 of the Act and published in the Official  Gazette shall  be conclusive evidence that the land is  needed for  a public  purpose and that to this rule there was  only one  exception, namely, that the declaration could be  challenged on the ground of malafide or colourable exercise  of  power.  It  was  thus  clear  that  the  third notification had  to be taken at its face value in so far as the  purpose   was  concerned   unless  the   exception  was established. It further goes without saying that the onus of proving  that   the  declaration   contained  in  the  third notification fell within the exception would be on the party claiming  the   benefit  of   the  exception,   namely,  the respondents. While  criticizing the  attitude of  the  State Government for  not having produced the documentary evidence from  which   the  purpose   of  the  acquisition  could  be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf  of the  Division Bench, repeatedly stated that he did not  intend to  say that the land of the respondents was not sought  to be  acquired for a purpose which was a public purpose as  declared in  the third notification or that that notification was  necessarily vitiated  by any  malafides or colourable exercise  of  power.  He  further  observed  that according  to   the  rules   of  evidence  it  was  for  the respondents to  satisfy the  Court that  there  had  been  a colourable exercise  of power  because the  onus of proof in that behalf was on them. In this situation we do not see how the respondents  could be  given any  relief whatsoever. The acquisition could  be struck  down only  if the  declaration contained  in  the  third  notification  was  proved  to  be vitiated by  malafides or  colourable exercise of the power. On the  other hand.  if it  was not  established  that  such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division  Bench,   therefore,  the  Letters  Patent  Appeals merited nothing but dismissal.      6. Learned  counsel for the respondents urged that they were really  entitled to  a finding of malafides on the part of the  State Government but we find ourselves wholly unable

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to agree  with him. The burden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face  of the  conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature  of the  purpose stated  in the declaration being true.  the   onus  on   the  respondents   to  displace  the presumption was  very heavy  indeed and we do not think that the same  could be  said to  have been  discharged by a mere allegation in  that behalf  which has  been  denied  by  the State. If we accept the argument that it is for the State to satisfy the  Court about the nature of the purpose for which the land  is sought  to be acquired, the whole object of the provi- 579 sion under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore,  hold  merely  on  the  strength  of  the absence of  production of  documentary evidence by the State that the  onus (which  rested heavily on the respondents) to prove malafides  or colourable exercise of power on the part of the  State Government,  has been  discharged. Even so the respondents have  produced no  material  to  show  that  the assertion about  the public  purpose as  stated in the third notification was  incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except  that by  the Company had been undertaken in the neighbourhood  of the  acquired area. On the other hand, there is  a clear  averment to  the contrary by the State in paragraph 1  of each  of the  applications dated  August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:           "That the Asansol Sub-Division within the District      of Burdwan is a highly developed industrial area having      a number  of big  industrial concerns,  viz. The Indian      Iron &  Steel Co.,  Indian  Aluminium  Corporation  and      several  collieries,   etc.,  etc.  It  is  within  the      industrial belt  of Durgapur-Asansol area where besides      the above  mentioned industries,  there  are  Hindustan      Steel, Durgapur  Projects Graphite Company and a number      of other very big industries."      This averment  which was  supported  by  affidavit  was never controverted  by the  respondents and cuts at the root of their plea of malafides or colourable exercise of power.      7.  Mr.   Balakrishnan,   learned   counsel   for   the respondents raised  a preliminary  point to  the effect that the second  notification was  void inasmuch  as it  had been issued while  the first  notification was still in force. We do not see any reason for entertaining the point when it was not raised  on behalf of the respondents at any stage before the High Court.      8. In  the result  all the five appeals succeed and are accepted.  The  impugned  judgment  is  set  aside  and  the petitions made  by the  respondents to  the High  Court  are dismissed. There  will, however,  be no order as to costs in any of the appeals. P.B.R.                                      Appeals allowed. 580