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PETITIONER: SMT.  SOMAVANTI AND OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND OTHERS(And Connected Petitions)

DATE OF JUDGMENT: 02/05/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  151            1963 SCR  (3) 774  CITATOR INFO :  F          1963 SC1890  (5)  RF         1965 SC 646  (9)  RF         1966 SC1788  (19A,21)  D          1967 SC1074  (9)  RF         1967 SC1081  (3)  F          1968 SC 432  (15)  F          1970 SC 984  (7)  RF         1971 SC 306  (10)  R          1971 SC1033  (8,9)  F          1973 SC 974  (10)  RF         1973 SC1461  (1071)  E          1975 SC1182  (3)  F          1977 SC 183  (6)  R          1978 SC 515  (3,4,6)  F          1979 SC1713  (5)  R          1980 SC 214  (20)  RF         1980 SC1678  (4)  F          1984 SC 120  (4)  F          1985 SC1622  (13)  RF         1988 SC 501  (5)  F          1988 SC 686  (18)  F          1988 SC1353  (18)  D          1989 SC 682  (4,7)  R          1989 SC2105  (6)  RF         1992 SC1456  (30)

ACT: Land  Acquisition-Public purpose Government declaration  as to   public  purpose-If  justiciable-"Conclusive   evidence" "Conclusive   Proof   Meaning   of-Compensation-Government’s contribution   of  cost-if  should   be   substantial-Indian Evidence  Act, 1872 (1 of 1872), ss. 3,  4-Land  Acquisition Act, 1894 (1 of 1894) , ss. 4, 5A, 6-Constitution of  India, Art. 14.

HEADNOTE: In February, 1961, the petitioners purchased over six  acres of  land  situate in the State of Punjab for a  sum  of  Rs. 4,50,000  and  claim,  to have done so for  the  purpose  of

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establishing  a paper mill.  The sixth respondent,  private’ limited company, which had a licence from the Government  of India for starting a factory for the manufacture of various 775 ranges of refrigeration compressors and ancillary equipment, requested the State of Punjab for the allotment of an appro- priate  site  for  the  location of  the  factory.   In  the official  Gazette  of  August 25,  1961.  was  published  ’a notification  of  the Governor of Punjab dated  ’August  18, 1961,  under s. 4 of the Land Acquisition Act, 1894, to  the effect that the land belonging to the petitioners was likely to  be  needed by the Government at public  expenses  for  a public  purpose,  namely,  for  setting  up  a  factory  for manufacturing  various ranges of  refrigeration  compressors and  ancillary  equipment.   The  Government  directed  that action  under s. 17 of the Act shall be taken because  there was urgency and that the provisions of s. 5A shall not apply to   the   acquisition.   In  the   same   Gazette   another notification  under s. 6 of the Act dated August  19,  1961, was published to the effect that the Governor of Punjab  was satisfied  that the land was required by the  Government  at public  expense  for  the  said  purpose,  The  notification provide  for the immediate taking of possession of the  land under  the  provisions  of s. 17 (2) (c)  of  the  Act.   On September  29, 1961, the Government of Punjab sanctioned  an expense  of  Rs. 100 for the purpose of acquisition  of  the land.  The petitioners filed an application under Art. 32 of the  Constitution of India challenging the legality  of  the action taken, by the Government on the grounds, inter  alia, (1) that the acquisition was not for a public purpose either under s. 4 or s. 6 of the Land Acquisition Act; (2) that the land  was in reality being acquired for the benefit  of  the sixth  respondent  and  that the action  of  the  Government amounted  to  discrimination  against  the  petitioners  and violated Art. 14 of the Constitution of India; (3) that  the alleged contribution of Rs. 100 made by the Government was a colourable  exercise of power inasmuch as the amount was  so unsubstantial sum compared to the value of the property that it could not raise an inference of Government  participation in  the  proposed activity; and (4) that  the  notifications under  ss. 4 and 6 could not have been  made  simultaneously and were, therefore, without efficacy. Held  (per Sinha, C. J., Rajagopala Ayyangar, Mudholkar  and Venkatarama  Aiyar, jj.), (1) that the declaration  made  by the  Government  in the notification under s. 6 (1)  of  the Land Acquisition Act, 1894, that the land was required for a public purpose, was made conclusive by sub-s. 3 of s. 6  and that  it was not open to a court to go behind it and try  to satisfy  itself  whether in fact the acquisition was  for  a public purpose. Whether in a particular case the purpose for which land  was needed was a public purpose or not was for the 776 Government to be satisfied about and the declaration of  the Government  would be final subject to one exception,  namely that where there was a colourable exercise of the power  the declaration  would be open to challenge at the  instance  of the aggrieved party. Hamabai  Framjee  Petit  v. Secretary of  State  for  India, (1914)  L.  R. 42 I. A. 44 and R. L. Arora v. The  State  of Uttar Pradesh, (1962) Supp. 2 S. C. R. 149 distinguished.  Vedlapatla Suryanarayana v. The Province of Madras, I.   L. R. (1946) Mad. 153, approved. (2)  that there wag no difference between the effect of  the expression "conclusive evidence" in s. 6 (3) of the Act from

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that  of "conclusive proof", the aim of both  being-to  give finality  to  the establishment of the existence of  a  fact from  the proof     of 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. (4)  that the provisions of the Act which provided that  the declaration  made  by the State that a particular  land  was needed for a public purpose, shall be conclusive evidence of the   fact  that  it  was  needed,  did  not   infring   the Constitution. State  of  Bihar v. Maharajadhiraja Sir Kameshwar  Singh  of Darbhanga & Ors., [1952] S. C. R. 889, Babu Barkya Thakur v. State of Bombay & Ors., [1961] 1 S. C. R. 128, and State  of Bombay v. Bhanji 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 game issue of the Gazette of the both the notifications that is the one dated August 18, 1961, and that dated August  19, 1961, was not irregular. Held,  further (Subba Rao, J., dissenting), that  the  noti- fication  dated  August  19, 1961, under s. 6  of  the  Land Acquisition  Act, 1894, was not invalid on the  ground  that the  777 amount  contributed  by the State towards the  cost  of  the acquisition  was only nominal compared to the value  of  the land. The expression "party out of public revenues" in the proviso to s. 6 (1) of the Act did not necessarily mean that State’s contribution  must  be  substantial;  but  whether  a  token contribution  by the State towards the cost  of  acquisition would  be  sufficient compliance with the law  would  depend upon the facts of each case and it was open to the court  in every  case  which came before it to ascertain  whether  the action of the State was a colourable exercise of power. Sanja Naicken v. Secretary of State, (1926) I. L. R. 50 Mad. 308 and Vadlapatla Suryanaryana v. The, Province of  Madras, 1. L. R. [1946] Mad. 153, approved. Ponnaia  v.  Secretary of State, A. 1. R.  1926  Mad.  1099, disapproved. Chatterton  v. Cave, (1878) 3 App.  Cas. 483  and  Maharajah Luchmeswar Singh v. Chairman of the Durbhanga  Municipality, (1890) L. R. 17 I. A. 90 held inapplicable. Per Subba Rao, J.-in interpreting the proviso to s. 6 (1) of the  Act  a  reasonable  meaning  should  be  given  to  the expression  "wholly  or partly." The payment of apart  of  a compensation  must  have  some  rational  relation  to   the compensation  payable  in respect of the acquisition  for  a public   purpose.    So  construed  "part  can   only   mean substantial  part of the estimated compensation.   What  was substantial  part of a compensation depended upon the  facts of each case.  In the instant case, it was impossible to say that a sum of Rs. 100 out of an estimated compensation which might  go even beyond Rs. 4,00,000 was in any sense  of  the term  a  substantial  part of the  said  compensation.   The

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Government had clearly broken the condition and,  therefore, it  had no jurisdiction to issue the declaration under s.  6 of the Act.

JUDGMENT: ORIGINAL JURISDICTION : Petitions Nos. 246 to 248 of 1961. Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. G. S. Pathak, Rameshwar Nath, S. C. Andley and P. L.  Vohra, for the petitioners (in petition No. 246 of 1 96 1), 778 Rameshwar  Nath,  S.  N.  Andley and P.  L.  Vohra  for  the petitioners (in petitions Nos. 247 and 2 48 of 196 1). S.   M. Sikri, Advocate-General J. for the State Of  Punjab, N.  S. Bindra and P. D. Menon, for respondent No. 1 (in  all the 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, Madholkar and Venkatarama Aiyar, J J., was delivered by Mudholker, J. MUDHOLKAR,  J.-The  petitioners who have acquired  over  six acres  of  land by purchase for Rs.  4,50,009  in  February, 1961, under five sale deeds and one lease deed claim to have done  so  for the purpose of establishing a  paper  mill  in collaboration with Messrs.  R. S. Madhoram and Sons who  had been  granted  a licence for the establishment  of  a  paper plant in Ghaziabad in Uttar Pradesh.  The aforesaid land  is situate in the village Meola Maharajpur, Tehsil Ballabhgarh, District Gurgaon, and abuts on the Mathura Road, and is only about 10 or 12 miles from New Delhi.  Respondent No. 6,  Air Conditioning  Corporation  (P) Ltd., is  a  private  limited concern and holds a licence from the Government of India for starting a factory for the manufacture of various ranges  of refrigeration  compressors and ancillary equipment.  We  may mention here that initially this project was allotted to the State  of West Bengal but at the request of State of  Punjab its location was shifted to the State of Punjab.  779 Respondent  No.  6  requested the State of  Punjab  for  the allotment  of  an appropriate site for the location  of  the factory.   The  petitioners contend that  respondent  No.  6 being  interested  in acquiring land in  the  village  Meola Maharajpur  approached the State of Punjab in or  about  the month of March, 1961, for the purpose of acquiring land  for their   factory  under  the  Land  Acquisition   Act,   1894 (hereinafter   referred  to  as  the  Act).   One   of   the petitioners  having  learnt of this made an  application  on March  23,  1961,  to  the  Deputy  Commissioner,   Gurgaon, requesting  him  that  none of the lands  purchased  by  the petitioners   should  be  acquired  for  the   benefit,   of respondent  No. 6. Owners of adjacent lands Mr. Om  Prakash, Mr, Ram Raghbir, Mr. Atmaram Chaddha and Mr.  Hari  Kishen who are petitioners in W. P. 247 and 248 of 1961 which  were heard along with. this petition made similar requests.   The petitioners  allege  that they were assured  by  the  Deputy Commissioner that their lands would not be acquired for  the benefit  of  respondent No. 6. Thereafter respondent  No.  6 purchased  by  private  treaty a,  plot  of  land  measuring approximately 70,000 sq. yards contiguous to, the land owned by the petitioners on or about April 21, 1961.

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The,  petitioners  grievance  is  that  notwithstanding  the assurances  given  to  them  by  the  Deputy   Commissioner, Gurgaon,  the  Governor  of Punjab,  by  notification  dated August  25,  1961, under s. 4 of the Act declared  that  the lands  of the petitioners in this petition as well as  those of  the  petitioners in the other two  writ  petitions  were likely to be needed by Government at public , expense for  a public  purpose,  namely,  for  setting  up  a  factory  for manufacturing     various    ranges     of     refrigeration compressors.,and,   ancillary  equipment.   It   accordingly notified that the, land in: the locality described 780 in the notification was required for the aforesaid  purpose. Similarly it authorised the Sub-Divisional Officer and  Land Acquisition  Officer, Palwal, to enter upon and  survey  the land  in the locality and to do all other acts  required  or permitted  by  s.4  of the Act.  It  further  directed  that action  under s. 17 of the Act shall be taken because  there was  urgency and also directed that the provisions of  s  5A shall  not  apply  to the acquisition.  On  August  19,  the Governor of Punjab made a notification under s. 6 of the Act to the effect that he was satisfied that the land  specified in  the  notification was required by Government  at  public expense for public purpose, namely, for setting up a factory for  the manufacture of refrigeration compressors and  other ancillary equipment and declared that the aforesaid land was required  for the aforesaid purposes.  This declaration  was made  "to  all whom it may concern" and  the  Sub-Divisional Officer,  Palwal, was directed to take all steps  for  the acquisition of this land.  Finally the notification provided for the immediate taking of possession of the land under the provisions  of  s.  17  (2) (c)  of  the  Act.   Both  these notifications  were  published  in  the  Punjab   Government Gazette of August 25, 1961. The  petitioners  contend that these notifications  and  the land  acquisition  proceedings permitted to be  taken  under them violate their fundamental rights under Art. 19 (1)  (f) and  (g)  to  possess  the said  land  and  carry  on  their occupation, trade or     business and that, therefore,  they must be   quashed. It  is their contention that they have purchased  this  land bona fide for industrial purposes as land in the vicinity of this   land   is  being  acquired  by   industrialists   for establishing various industries.  The purpose is said to  be the establishment of a paper manufacturing plant.  According to them 781 they  have entered into an arrangement with Messrs.   R.  S. Madho  Ram  & Sons who hold industrial licence  No.  L/2-1/2 (1)/N-60/62.   The  proposed industry,  according  to  them, would  employ about 200 people.  The industry they  wish  to start  is  a new one so far as they are  concerned,  whereas according  to them, the respondent No. 6 is already  engaged in  refrigeration industry and as far as they know,  it  has established   a  factory  for  manufacturing   refrigeration equipment at Hyderabad in the State of Andhra Pradesh. It  may be mentioned that some time after  the  notification was   published,  that  is,  on  September  29,  1961,   the Government  of Punjab sanctioned the expense of Rs. 100  for the  purpose of acquisition of this land.  According to  the petitioners  this was an after-thought and besides, a  token contribution of this kind is not sufficient to show that the acquisition is being made partly at public expense. The  petition was opposed not only by respondent No. 6  but also by the State of Punjab which is respondent No. 1 to the

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petition.  The respondent No. 1 denied that the  petitioners had  purchased the land for a bona fide  industrial  purpose and  would in fact use it for such purpose.  It also  denied that  any assurance was give to the petitioners  that  their lands   would  not  be  acquired.   It  admitted  that   the respondent  No. 6 had made an application in December,  1960 for  acquiring  land for setting up its  factory  and  that, therefore,  the Punjab Government agreed to do the  needful. According  to respondent No. 1 the  acquisition  proceedings have  been  undertaken for a public purpose  and  at  public expense  as  stated in the notification and that  the  State Government would make part contribution towards the, payment of compensation of the land’ out of public revenues.  In the circumstances it in 782 contended that the petitioners would not be entitled to  any relief  whatsoever.  They would of course  get  compensation for the land as determined by the Land Acquisition Officer. The  action of the State Government is said to be legal  and in  accordance with the provisions of the law  because  what was  done was permissible under ss.4 and 6 of the Act,  that it  was done bona fide, that part of the compensation  would be  paid out of the, public revenues, that  the  declaration made  by the Government is conclusive evidence under  sub-s. (3)  of s.6, that the land is needed for ,a public  purpose, that  the notifications were made on different dates  though they were published in the same issue of the Gazette and are perfectly  valid, that the land is not being acquired for  a company  but  for  a public purpose,  that,  therefore,  the provisions of Part VII of the Act are inapplicable and  that the  lands  are lying vacant and their owners will  be  paid compensation.   No  question  of  depriving  them  of  their fundamental rights under Art. 19(1)(f) and (g)    or      of violation of their right under Art. 14 therefore  arises. According  to  respondent  No. 1 it would  be  open  to  the petitioners to make their claim for compensation to the Land Acquisition  Officer for such loss as the acquisition  would entail  on them.  It also stated that as the land  purchased by  the respondent No. 6 through private negotiation has  no access  to the main road’ and as the land is  inadequate  to meet  the minimum essential requirements the acquisition  of the, lands in question became necessary. On behalf of the respondent No. 6 it is stated that the need for a factory like the one in its con. temptation is acutely felt in India inasmuch a manufacture of compressors and  the composes   nts   of   big   and   small    air-conditioners, refrigerators,  783 water coolers and cold storage cabinets is not being carried out  anywhere  in the country so far.  The import  of  these goods naturally drains away a considerable amount of foreign exchange.    It  was,  therefore,  felt  that  by   starting manufacture  of these articles in our country not only  Will foreign  exchange be saved, but some foreign  exchange  will eventually  be earned by the export of  manufactured  goods. They further contend that the purpose for which the  factory is being set up must be regarded as a public purpose because inter  alia  it is intended by manufacturing  the  aforesaid goods, to cater to the needs of the public at large.  It  is in view of these circumstances that the Government of India, accepting  the  recommendation made in this  regard  by  the licensing  committee  under the Industries  Development  and Regulation  Act,  1951, issued a licence in  its  favour  on April 8, 1951.  It then pointed out that it has secured  the collaboration  in  this  project of  a  well-known  American

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Company  named  Borg-Warner  International  Corporation   of Chicago,   which  is  the  biggest  manufacturers   of   air conditioning plants and equipment in the world, and that the collaboration agreement has been approved by the  Government of India in the Ministry of Commerce.  Its grievance is that this  agreement has not been implemented so far  because  it has  not  been  able to get the land  for  constructing  the building  in which the necessary machinery and  ,implements’ could  be  installed.  Finally it says that  originally  the licence was issued for setting up a factory in the State  of West  Bengal  and  that  it  was  at  the  instance  of  the Government  of Punjab that the Central Government  permitted the  location of the factory to be shifted from West  Bengal to  Punjab.  According to it once the factory gets going  it is likely to employ at least 1,000 workers. It is not necessary to refer to the other affidavits and the rejoinder affidavits except to some 784 portions  of  the additional affidavit filed by  Mr.  M.  B. Bhagat,  Under Secretary on behalf of the respondent No.  1. We are referring only to those portions which were relied on during  the  arguments before us. In that  affidavit  it  is denied  that any licence had been granted to Messrs.  R.  S. Madho  Ram & Sons for the establishment of a paper plant  in the  Punjab.  According to respondent No. 1 Messrs.   R.  S. Madho Ram & Sons were granted a licence on August 17,  1960, for  the  establishment  of  an  industrial  undertaking  in Ghaziabad (U.P.) for the manufacture of writing and printing paper  and pulp.  It further stated that even  this  licence has  been  cancelled  by the Government of  India  by  their letter dated January 31, 1962.  Since the said licensee  did not take any effective steps to establish the same.  It then stated  that  the  Air Conditioning  Corporation  which  was incorporated  as a private limited company has  since,  with the  permission  of the Central Government,  been  converted into  a  public limited company with the name and  style  of "York  India Ltd.", and that the company has been granted  a licence  to  manufacture  refrigeration  equipment  by   the Industrial  Licensing  Committee.   There  is  an  agreement between  York  India Ltd., and  Messrs.   York  Corporation, U.S.A. a subsidiary of Borg Warner of the U.S.A.  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 collaborators  also have agreed to sell the products of  the firm  outside  India at prices and on terms  and  conditions most  favourable to the Indian firm, thereby enabling it  to obtain   access   to  the  foreign  market.    The   foreign collaborator would make available to the Indian 785 personnel  the  technical ,know-how’ and  other  information necessary for the manufacture of refrigeration materials and that  such  assistance  will itself be  very  valuable.   It denied  that the respondent No. 6 has established a  factory similar  to  the  one  now intended  to  be  established  in Hyderabad  as  alleged by the petitioners.  It  is  admitted that  licences  have been granted to two other  concerns  in India for the manufacture of similar equipment.  Neither  of those  licensees  has actually started  production,  at  any rate, so far, and, therefore, it is not correct to say  that similar  equipment is already being manufactured  in  India. Then it stated "the products that are to be manufactured  by

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the respondent till now were being imported into India  from foreign  countries and goods worth about Rs. 3,83,70,000  in 1960  and for the first ten months in 1961  Rs.  3,56,50,000 were imported by the various licensees holding import 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 s.4 or s.6 of the  Land               Acquisition Act or for a purpose useful to the               public  as contemplated in s.41 and  that  the               action of the Government amounted to               786               acquiring property from one person and  giving               it to another.               (2)   The alleged contribution of Rs. 100 made               by the Government is a colourable exercise  of               power,  that no such intention  was  mentioned               prior to the notification and that the  amount               of Rs. 100 is so unsubstantial a gum  compared               to  the value of the property that  it  cannot               raise an inference of Government participation               in the proposed activity.               (3)   That  the  property  is  in  fact  being               acquired  for  a company and,  therefore,  the               provisions of Part VII of the Act should  have               been complied with.  Non-compliance with those               provisions vitiates 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               latter   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 for  a public  purpose,  partly  at public  expense.   Indeed,  the respondents  at  no stage have relied on the  provisions  of Part  VII of the Act and therefore, the main question to  be considered  is  whether  the acquisition  is  for  a  public purpose 787 partly  at  public expense or not.  If it is  so,  then,  of course,  the petitions must succeed.  Therefore, it  is  the first  two contentions raised by Mr. Pathak which  primarily need our consideration. According  to  learned  counsel  for  the  petitioners   the statements  made in the affidavits on behalf of  the;  State as;  well   as, on behalf of the respondent No.  6  make  it

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perfectly  clear  that the land is being  acquired  for  the respondents  No.  6. Reliance, is placed  particularly  upon that  portion  of the affidavit of the State,  where  it  is stated that the land is acquired for enabling the respondent No. 6, to have access to the main road and for meeting their minimum  requirements for establishing their factory, It  is further stated that the compensation for all the land  which is being acquired is to come out of the pockets not of  the, State Government but the respondent No. 6 itself.  No doubt, the  Government has said that it has sanctioned the  payment of  Rs. 100 towards the payment of compensation but that  is only  an  insignificant  fraction of  the  total  amount  of compensation that would be payable in, respect of these Ian- (Is,  the  petitioners  the  a  themselves-having  paid  Rs. 4,50,000 to the persons from whom they acquired these lands. On  behalf of the respondents the  learned  Advocate-General for Punjab contended that the declaration of the  Government in  the notification that the land is required for a  public purpose  is made conclusive by sub-s. 3 of s. 6 of  the  Act and, therefore, it is not open to this Court to go behind it and try to satisfy itself whether in fact the acquisition is for  a public, purpose or not.  Alternatively  he  contended that the land is being acquired for a public purpose because the object of the acquisition is to establish a new industry 788 and  do away with imports of refrigeration equipment and  to enable   technical  education  to  be  imparted  to   Indian personnel  in  a  new  field.   He  further  said  that  the acquisition will not only save foreign exchange by lessening imports  but will enable foreign exchange to be earned  from the  export of goods manufactured in the  proposed  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 antibiotics which  are liable to be decomposed at normal temperatures prevailing in our country.  The industry proposed to be started will  open a  new  avenue of employment and diminish  unemployment  and generally advance the industrial development of the country. Finally  he  said that a part of the land  is  required  for building houses and quarters for the workers of the  factory and  to  give amenities to them.  All  these  purposes  are, therefore, said to be public purposes.  Reliance was  placed by him on Vol. 19 of 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 refrigeration have  been  grouped under the heading Public utility’.  Reference was also  made to  be  next page where it is stated "Every  public  utility must  be in possession of natural resources upon which  that industry   is  based.   Their  sites  must  have   strategic locations.   Limitation  in  the choice  of  this  agent  of production  tends to make the cost of acquiring  or  leasing these  facilities greater than it would be if  the  industry had  a wider range of choice.  Furthermore,  utilities  must make  allowances  in advance for probable  increase  in  the required capacity.  For these reasons utilities are provided 780 with  the governmental power of eminent domain  which  makes possible the ‘compulsory sale of private property."  Relying upon the affidavit of Mr. Bhagat, to which we have  referred earlier,  the learned Advocate-General of Punjab  said  that the object of the Government in acquiring these lands is  to

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enable a new industry to be established not only for  saving foreign  exchange and earning foreign exchange bat also  for securing the industrial advancement of the country, enabling the  citizens to obtain technical education in a new  field, relieving to some extent the Pressure of unemployment and so on.  For all these reasons he contends that the  acquisition must  be deemed to be for a public purpose even  though  the bulk of the compensation for the acquisition will come  from the pockets of respondent No. 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  is  strenuously contended on behalf of  the  petitioners that  sub-s.  3  of  s. 6 does not  debar  this  Court  from considering  whether a purposed acquisition is for a  public purpose  or not.  It is said, in the first place, that  this provision  only makes the declaration "conclusive  evidence" and  not  "conclusive  proof" and then  contended  that  the declaration  is  conclusive  evidence only  of  a  need  and nothing more. A  distinction  is  sought to be  made  between  "Conclusive proof" and "conclusive evidence" and 790 it is contended that where a law declares that a fact  shall be conclusive proof of another, the Court is precluded  from considering  other evidence once such fact  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 to be existence of the other fact is not shut out.  In support  of the  argument  reliance  is placed on s. 4  of  the  Indian Evidence   Act   which  in  its  third   paragraph   defines ’conclusive proof’ as follows :               "When  one fact is declared by this Act to  be               conclusive proof of another, the Court  shall,               on proof of the one fact, regard the other  as               proved,  and  shall not allow evidence  to  be               given for the purpose of disproving it". This paragraph thus provides that further evidence is barred where,, under the Indian Evidence Act, one fact is  regarded as  proof of another.  But it says nothing about what  other laws  may  provide.  There are a number of laws  which  make certain  fact&  conclusive  evidence of  other  facts:  (see Companies  Act,  1956, s. 132 ; the Indian  Succession  Act, 1925, s. 381 ; Christian Marriages Act, 1872, s. 61 ; Madras Revenue  Act, 1869, s. 38 ; Oaths Act, 1873, s.  (11).   The question is whether such provision also bars other  evidence after that which is conclusive evidence is produced. The object of adducing evidence is to prove a fact.    The Indian  Evidence  Act, deals with the, question as  to  what kind  of  evidence is permissible to be  adduced  for  that, purpose and states in s. 3 when a fact is said to be proved. That section reads thus                         791 ’Evidence’ means and includes-               (1)   all  statements which the court  permits               or requires to be made before it by witnesses,

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             in, relation to matters of fact under, inquiry               ; such statements are called oral evidence ;               (2)   all    documents   produced   for    the               inspection  of the court ; such documents  are               called documentary evidence.               A  fact  is  said to  be  proved  when,  after               considering  the matters before it, the  Court               either believes it to exist, or considers  its               existence  so  probable  that  a  prudent  man               ought,   under   the  circumstances   of   the               particular  case, to act upon the               supposition that it exists." Since  evidence means and includes all statement  which  the court  permits  or requires to be made,. when the  law  says that a particular kind of evidence would be conclusive as to the  existence of a particular fact it implies   that  that fact  can be proved either or by evidence or by  some  other evidence which the Court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court  to  consider whether, upon that  evidence,  the  fact exist  or not.  Where on the other hand, evidence  which  is made  conclusive is adduced, the Court has no option but  to hold that the fact exists.  If that were not so, it would be meaningless  to  call  a particular  piece  of  evidence  as conclusive  evidence.   Once  the  law  says  that   certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.,  In substance,   therefore,  there  is  no  difference   between conclusive evidence and 792 conclusive   proof.    Statutes  may  use   the   expression ’conclusive  proof’ where the object is to make a fact  non- justiciable.   But  the  legislature  may  use  some   other expression  such as ’conclusive evidence’ for achieving  the same result.  There is thus no difference between the effect of   the  expression  conclusive  evidence’  from  that   of ’conclusive  proof’, the aim of both being to give  finality to  the  establishment of the existence of a fact  from  the proof of another. Learned  counsel  contends that it is open to the  Court  to examine  whether  the action of the executive, even  in  the absence of an allegation that it is malafide, is related  to the section or not and for this purpose to consider  whether the acquisition is for a public purpose.  In support of this contention he has relied upon the decision in State of Bihar v.  Maharajadhiraja  Sir  Kameswarsingh  of Darbhanga(1). There, Mahajan, J. ’as he then was,) has expressed the  view that  the  exercise  of power  to  acquire  compulsorily  is conditional  on  the existence of public  purpose  and  that being so this condition is not an express provision of  Art. 31 (2) but exists aliund in the content of the power itself. That, however, was not the view of the other learned  Judges who  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  988).  Similarly Patanjali Sastri, C.J., has  also taken  the view that the existence of public purpose  is  an express condition of cl. 2 of Art. 31. The Constitution permits acquisition by the State of private property only if it is required for a, public purpose.   But can it; therefore, be said (1)  [1952] S.C.R.889 935. 793 that  the provisions of a statute must be so construed  that

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the  declaration  by the Government as to the  existence  of public  purpose  is  necessarily justiciable ?  We  are  not concerned here with a post Constitution law but with a  pre- Constitution law.  The Act has been in operation since 1894. The validity of the law was challenged before this Court  in Babu Barkya Thakur v. The State of Bombay (1) on the  ground that it infringes the provisions of Arts. 31(2) and 19(1)(f) of the Constitution.  But this Court held that the law being a  pre-Constitution law is protected from the  operation  of Art.  31(2)  by the provisions of Art. 31(5) (a).   It  also held,  following  the decision in the State  of  ,Bombay  v. Bhanji  Munji (2) and that in Lilavati Bai v. The  State  of Bombay  (3)  that  the attack under  Art.  19(1)(f)  of  the Constitution is futile. The argument, however, is that the protection which the  Act enjoys  is only to this extent that even though any  of  its provisions  be in conflict with Art.31(2) the Act cannot  be challenged on that ground ; the protection does not  however extend to other provisions of Part III of the  Constitution, such  as  Art. 19(1)(f).  As we understand the  decision  in Bhanji Munji’s case (2) what this Court has held is that for a  right  under  Art.  19(1).(f)  to  bold  property  to  be available  to  a  person, he must  have  the  property  with respect to which he can assert such right.   If the right to the possession of the property     is  taken  away  by   law protected by Art. 31 (5) (a),   Art.  19  (1)  (f)  is   not attracted.   That is the decision of this Court and  it  has been  followed  in two other cases.  All the  decisions  are binding upon us.  It is contended that none of the decisions has  considered the argument advanced before us that  a  law may be (1) (1961) 1 S.C.R. 128-  (2) 0935) 1 S.C.R. 777-                     (3) (1957) S.C.R. M. 794 protected from an attack under Art. 31 (2) but it *ill still be invalid under Art. 13 (2) if the restriction placed by it on  the right of a person to hold property is  unreasonable. In  other words, for the law before us to regarded as  valid it must also satisfy the requirements of Art. 19(5) and that only thereafter can the property of a person be taken  away. It is sufficient to say that though this Court may not  have pronounced on this aspect of the matter we are bound by  the actual  decisions  which categorically  negative  an  attack based on the right guaranteed by Art. 19(1)(f).  The binding effect  of  a  decision  does not  depend  upon  whether.  a particular argument was considered therein or not,  provided that  the  point  with reference to which  an  argument  was subsequently  advanced was actualy decided.  That point  has been specifically decided in the three decisions referred to above. We,  therefore,  hold that since the Act provides  that  the declaration  made  by the State that a  particular  land  is needed for a; public purpose shall be conclusive evidence of the  fact  that  it is so needed  the  Constitution  is  not thereby infringed. For  ascertaining the extent to which the  determination  by the State is conclusive it would be desirable to examine the relevant  provisions of the Act.  The preamble  states  that the  law  is for the acquisition of land needed  for  public purposes and for companies and incidental matters  connected therewith.  Section 2(f) defines public purpose as follows :               "the expression ’public purpose’ includes  the               provision  of  village sites in  districts  in               which  the appropriate Government  shall  have               declared  by  notification  in  the   Official

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             Gazette   that   it  is  customary   for   the               Government to make such provision:" 795 This  is an inclusive definition and not a  compendious  one and therefore, does not assist us very much in  Ascertaining the    ambit   of   the   expression    ’public    purpose’. Broadly  speaking  the  expression  public  purpose’  would, however, include a purpose in which the general interest  of the community, as   opposed  to the particular  interest  of individuals, is     directly  and vitallv  concerned.   Then there is s.    4  which  enables  the  State  to  publish  a preliminary notification whenever it appears to it that land in  any locality is needed or is likely to be ,needed for  a public  purpose.  The other aspects of the section  have  no bearing  upon the point before us and we need not  refer  to them.   Then  there  its s. 5A which  gives  to  the  person interested  in  the land which has been  notified  as  being needed or likely to be needed for a public purpose or for  a company, the right to object to the acquisition of the land. Such  objection has to be heard by the Collector  and  after making  such  further  enquiry as he  thinks  necessary  the record  has  to be submitted to the  appropriate  Government along   with   the   report   containing   the   Collector’s recommendations and the objections. subsection (2) of s.  5A makes  the  decision of the Government  on  the objections final.   This  is  followed by s. 6 sub.  s.  (1)  of  which provides  that  when the Government is  satisfied  that  any particular  land  is needed for a public purpose, or  for  a company,  a  declaration should be made to that  effect  and such  declaration  should  be  published  in  the   Official Gazette.   Sub-section (2) specifies the  matters  including the purpose for which the land is needed which are to be set out   in   the  declaration.   Subsection  (3)   makes   the declaration conclusive evidence of the fact that the land is needed  for a public purpose or for a company, as  the  case may be.  Section 17 of the Act confers special powers on the Government  which  are exercisable in  cases  of  emergency. Sub-section (4) thereof provides 796 that  in those cases which fall under sub-s. (1)  or  Sub-s. (2)   the  appropriate  Government  may  direct   that   the provisions  of  s. 5A of the Act shall not  apply  and  also empowers  the Government to make a declaration under s.6  in respect  of  the land to be acquired at any time  after  the publication  of the. notification under sub-s. (1)  of  s.4. These  are the provisions which have a bearing on the  point under consideration. It is clear from these provisions that the object of the law is  to empower Government to acquire land only for a  public purpose or for a company, and, where it is for a company the acquisition  is subject to the provisions of Part  VII.   As has  been  pointed out by this Court in R. L. Arora  v.  The State  of  Uttar Pradesh (1) the acquisition for  a  company contemplated by Part VII is confined only to cases where the Government  is satisfied that the purpose of  obtaining  the land is erection of dwelling houses for workmen employed  by the  company  or  for the provision  of  amenities  directly connected  therewith  or for the construction of  some  work which is likely to prove directly useful to the public. After a notification under sub.s. (1) of s.4 is published  a person  interested in the land is entitled to object to  the acquisition.  That objection may be raised on any ground  as for instance that the land is not in fact needed at all  for any  purpose or that it is not suitable for the purpose  for which  it is, sought to be acquired or that the  purpose  is

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not a public purpose or what is said to be a company is  not a  company and so on.  Finality is attached to the  decision of  the  Government  which ultimately  has  to  decide  such objections.   Then follows s.6 which enables the  Government to  make a declaration provided that it is satisfied that  a particular  land  is needed for a, public purpose or  for  a company.  No doubt, (1)  (1962) Supp. 2 S.C.R. 149. 797 it  is  open  to the State Government  in  an  emergency  by exercisingits powers under sub. s. (4) of s. 17, to say that the provisions of s. 5A would not apply.  But for construing the provisions of s. 6 it would be relevant to bear in  mind that  section.  The scheme of the Act is that  normally  the provisions  of  s. 5A have to be complied with.   Where,  in pursuance  of the provisions, objections are  lodged,  these objections  will have to be decided by the Government.   For deciding  them  the  Government  will  have  before  it  the Collector’s proceedings.  It would, therefore, be clear that the  declaration  that  a particular land is  needed  for  a public  purpose  or for a company is not to be made  by  the Government arbitrarily, but on the basis of material  placed before it by the Collector.  The provisions of sub.s. (2)  of s. 5A make the decision of the Government on the  objections final while those of sub-s (1) of s.    6     enable     the Government  to arrive at it; satisfaction.  Sub-section  (3) of s. 6 goes further and says that such a declaration  shall be conclusive evidence that the land is needed for a  public purpose or for a company. It   is,  however,  argued  by  learned  counsel  that   the conclusiveness  or finality attached to the  declaration  of Government  is  only as regards the fact that  the  land  is "needed"  but not as regards the question that  the  purpose for which the land is needed is in fact a public purpose  or what  is  said to be a company is really  a  company.   Sub- section  (1) does not effect a dichotomy between "need"  and "Public  purpose or a company".  There is  no  justification for  making such a dichotomy.  By making it, not  only  will the  language of the section be strained but the purpose  of the law will be stultified.  The expression must be regarded as one whole and the declaration held to be with respect  to both the elements of the expression. 798 The  Government has to be satisfied about both the  elements contained in the expression "needed for a public purpose  or a  company".   Where it is so satisfied, it is  entitled  to make  a declaration.  Once such a declaration is made  subs. (3) invests it with conclusiveness.  That con-,  elusiveness is  not  merely regarding the fact that  the  Government  is satisfied but also with regard to the question that the land is  needed for a public purpose or is needed for a  company, as  the  case may be.  Then again, the  conclusiveness  must necessarily  attach not merely to the need but also  to  the question whether the purpose is a public purpose or what  is said  to be a company is a company.  There can be no  "need" in  the abstract.  It must be a need for a ’public  purpose’ or for a company.  As we have already stated the law permits acquisition only when there is a public purpose or when  the land is needed for a company for the purposes set out in  s. 40  of the Act.  Therefore, it would be unreasonable to  say that the conclusiveness would attach only to a need and  not to the fact that that need is for a public purpose or for  a company.   No land can be acquired under the Act unless  the need is for one or the other purpose and, therefore it  will be  futile to give conclusiveness merely to the question  of

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need dissociated from the question of public purpose or  the purpose  of  a  company.  Upon the  plain  language  of  the relevant  provisions  it  is riot  possible  to  accept  the contention put forward by learned counsel. Learned  counsel put the matter in a slightly different  way and  said that s. 6 (3) presupposes that the  jurisdictional fact  exists, namely, that there is a public purpose or  the purpose of a company behind the acquisition and,  therefore, the  question whether it exists or not is justiciable.   The Act  has empowered the Government to determine the  question of the need of land for a public 799 purpose or for a company and the jurisdiction conferred upon it to do so is not made conditional upon the existence of  a collateral  or extraneous fact.  It is the existence of  the need  for a public purpose which gives jurisdiction  to  the Government to make a declaration under s. 6 (1) and makes it the  sole judge whether there is in fact a need and  whether the  purpose  for  which  there is that  need  is  a  public purpose.  The provisions of sub-s. (3) preclude a court from ascertaining  whether  either of these  ingredients  of  the declaration exists. It is, however, said that that does not mean that in so  far as the meaning to be given to the expression public  purpose is  concerned the courts have no power whatsoever.  In  this connection  the  decision of the Privy  Council  in  Hamabai Framjee Petit v. Secretary of State for India (1) was refer- red to.  In that case certain land in Malabar Hill in Bombay was   being  acquired  by  the  Government  of  Bombay   for constructing  residences  for Government  officers  and  the Acquisition was objected to by the lessee of the land on the ground  that the land was not being taken or made  available to  the public at large and, therefore, the acquisition  was not  for a public purpose.  When the matter went  up  before the High Court Batchelor, J., observed:               "General definitions ’are, I think, rather  to               be  avoided where the avoidance  is  possible,               and I make no attempt to define precisely  the               extent  of the phrase,public purposes’ in  the               lease;  it  is  enough  to  say  that,  in  my               opinion,  the  phrase, whatever  else  it  may               mean,  must  include a purpose,  that  is,  an               object  or aim, in which the general  interest               of the community., as opposed to, the     X       X particular               1)b       P (1914) L.R. 42 IA. 44.               800               interest  of  individuals,  is  directly   and               vitally concerned." In that case what was being considered was a re-entry clause in  a lease deed and not provisions of the Land  Acquisition Act.  That clause left it absolutely to the lessor, the East India  Company  to  say whether  the  possession  should  be resumed  by  it  if  the land was  required  for  a  public, purpose.   It was in this context that the question  whether the  land  was needed for a public purpose  was  considered. The  argument before the Privy Council rested upon the  view that  there cannot be a ’public purpose’ in taking  land  if that  land,  when taken, is not in some way or  other  made, available  to the public at large.  Rejecting it  they  held that  the true view is that expressed by Batchelor, J.,  and observed:               "That  being  so,  all  that  remains  is   to

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             determine  whether  the  purpose  here  is   a               purpose  in which the general interest of  the               community  is  concerned.   Prima  facie   the               Government are good judges of that.  They  are               not  absolute judges.  They cannot  say  ,,sic               volo sic jebeo, but at least a Court would not               easily  hold them to be wrong.  But  here,  so               far  from holding them to be wrong, the  whole               of  the  learned judges,  who  are  thoroughly               conversant with the conditions of Indian life,               say that they are satisfied that the scheme is               one  which will redound to public  benefit  by               helping   the  Government  to   maintain   the               efficiency  of  its  servants.   From  such  a               conclusion  their Lordships would be  slow  to               differ, and upon its own statement it commends               itself to their judgment". Mr.  Pathak strongly relied on these observations  and  said that  the  Privy  Council  have  held  that  the  matter  is justiciable.  It is enough to say  801 that that was not a case under the Land Acquisition Act and, therefore,  conclusiveness  did  not attach  itself  to  the satisfaction  of  the Government that a  particular  purpose fell within the concept of public purpose. Mr.  Pathak  then  contended that the  question  as  to  the meaning  to be given to the phrase ’public purpose’  is  not given conclusiveness by sub-s. (3) of s. 6. According to him all that sub-s.  (3) of s. 6 says is that the  Government’s declaration  that  particular land is needed  for  a  public purpose  or a company shall be conclusive and that  it  does not say that the Government is empowered to define what is a public  purpose  and then say that  the  particular  purpose falls within that definition.  As already stated no  attempt has  been  made  in the Act to define public  purpose  in  a compendious  way.  Public purpose is bound to vary with  the times and the prevailing conditions in a given locality and, therefore,  it would not be a practical proposition even  to attempt a comprehensive definition of it.  It is because  of this  that the legislature has left it to the Government  to say what is a public purpose and also to declare the need of a given and for a public purpose. It was contended on the basis of the decision of this  Court in  R.  L. Arora v. The State of U. P. (1)  that-the  Courts have power to consider whether the purpose for which land is being  acquired is a public purpose.  In that case land  was being  acquired,  as already stated, for a company  and  the real question which arose for consideration was, what is the meaning  to be attached to the words "useful to the  public" occurring in cl. (b) of sub-s. (1) of s. 40 of the Act.  The land  was required by the company to enable it to  establish its  works and it was contended before this Court  that  the products manufactured (1)  [1962] Supp. 2S.C.R.149 802 by the company will be useful to the public in general  and, therefore,  the acquisition would be covered by cl.  (b)  of sub-s.  (1) of s. 40.  Negativing this  contention  Wanchoo, J., who spoke for the Court observed :               "It  is true that it is for the Government  to               be  satisfied that the work to be  constructed               will  be useful to the public  but  this  does               not  mean that it is the Government which  has               the right to interpret the words used ins.  40               (1)  (b)......It  is the Court  which  has  to

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             interpret  what those words mean.   After  the               court  has interpreted these words, it is  the               Government  which has to carry out the  object               of  ss.  40 and 41 to its  satisfaction.   The               Government cannot say that ss. 40 and 41  mean               this  and further say that they are  satisfied               that  the  meaning  they  have  given  to  the               relevant  words  in these  sections  has  been               carried  out  in the terms  of  the  agreement               provided      by      them.................The               Government  cannot  both give meaning  to  the               words and also say that they are satisfied  on               the meaning given by them.  The meaning has to               be   given  by  the  Court  and  it  is   only               thereafter that the Government’s  satisfaction               may  not be open to challenge We have  already               indicated  what  these words mean  and  if  it               plainly   appears  that  the  Government   are               satisfied  as  a result of giving  some  other               meaning to the words, the satisfaction of  the               Government is of no use, for then they are not               satisfied about what they should be satisfied.               In  the present case the Government  seems  to               have  taken a wrong view that so long  as  the               product  of the works is useful to the  public               and  so long as the public is entitled  to  go               upon the works in the way of Body text      Uf       tQ34pe4-˜ 803 business, that is all that is required by the relevant words in as. 40 and 41’ required It was no doubt argued before the Court that the declaration made  by  the Government under s. 6 (1) that  the  land  was needed  for  a  company is conclusive  and,  therefore,  the question as to the actual purpose of the acquisition is  not justiciable.  This Court pointed out that s. 6 (3) makes the declaration  under s. 6 (1) conclusive evidence of the  fact that  the  land  is needed for a public  purpose  or  for  a company and that as the declaration stated that the land was needed  for a company and that fact was not disputed by  the parties,  the provisions of s. 6 (3) were of no  assistance. We  may  point  out that even  according  to  that  decision conclusiveness attaches itself to the declaration that  the. land  is  required  for a public  purpose  and.  therefore,. instead of assisting the petitioners it in fact assists  the respondents.   No doubt, in so far as an acquisition  for  a company  is  concerned  Part  VII  requires  that  before  a declaration under s. 6 (1) is made the Government should  be satisfied  that  the  land is required for one  of  the  two purposes set out in s.   40 (1) of the Act.  The  Government can consent to the  making of a declaration under a.  6  (1) after it  is satisfied under s. 41 about the fact that the land is required for a company fort the purposes set out  in el.  (a) and (b) of that section.  But the declaration  made thereafter  is confined only to one matter and that is  that the  land is required for a company and nothing  more.   The question whether in fact the land is required by the company for the purposes set out in el. (a) and (b) of s. 40 (1)  is not  germane to the declaration.  No doubt the power of  the Government  to  make  a  declaration  with  respect  to   an acquisition  for a company is circumscribed and,  therefore, the Government is expected to exercise it with due regard to the limitation placed upon it.  But it does not follow  that sub-a. (3)                             804

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of  S. 6 makes the declaration conclusive evidence not  only of the fact that the land is required for a Company but also of  the  fact that the land is required by a company  for  a purpose specified in s. 40 (1) of the Act.  The observations made   by   Wanchoo,  J.,  therefore  do  not   assist   the petitioners. Reliance  was then placed on two decisions of this Court  in which  the  meaning of the expression  "public  purpose"  is considered.   One  is  Babu Barkya Thakur v.  The  State  of Bombay (1). There this Court observed               "It  will thus be noticed that the  expression               ’public purpose’ has been used in its  generic               sense of including any purpose in which even a               fraction of the community may be interested or               by which it may be benefited." Later in the same judgment this Court pointed out that where a large section of the community is concerned its welfare is a matter of public concern.  The other is Pandit Jhandu  Lal v.  The Slate of Punjab (2).  There this Court  has  pointed out that the purpose of public utility referred to in ss. 40 and 41 are akin to the public purpose. No doubt in these decisions this Court stated what,  broadly speaking,  the  expression ’public purpose’ means.   But  in neither  case  the question arose for  consideration  as  to whether  the meaning to be given to the  expression  ’public purpose’ is justiciable. Now whether in a particular case the purpose for which  land is  needed  is a public purpose or not is  for  the.   State Government to be satisfied about.  If the purpose for  which the  land  is  being acquired by the  State  is  within  the legislative  competence of the State the declaration of  the Government will be (1) [1961] 1. S.C.R. 126, (2) [1961]2.SC.R.459. 805 final subject, however, to one exception.  That exception is that  if  there  is  a  colourable  exercise  of  power  the declaration will be open to challenge at the instance of the aggrieved  party.  The power committed to the Government  by the  Act  is  a limited power in the sense that  it  can  be exercised  only  where there is a  public  purpose,  leaving aside for a moment the purpose of a company.  If it  appears that what the Government is satisfied about is not a  public purpose  but  a private purpose or no purpose  act  all  the action  of the Government would be colourable as  not  being relatable to the power conferred upon it by the Act and  its declaration  will be a nullity.  Subject to  this  exception the declaration of the Government will be final. A  number of decisions were cited before us by  the  learned Advocate-General  in  support  of the  contention  that  the declaration  of  the  Government is  final.   One  of  those decisions  is  Wijeyesekera v. Festing (1).   In  that  case dealing with Ceylon Ordinance No. 3 of 1876 (Acquisition  of Land  Ordinance, (Ceylon), 1876) which incidentally did  not contain  a provision similar to that of sub-s. (3) of s.  6, their Lordships observed:               "The  whole frame of the ordinance shows  that               what  the District Court is concerned with  is               the  assessment  of  compensation,  but  their               Lordships do not desire 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

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             purposes  is  final, and was  intended  to  be               final,  and  could not be  questioned  in  any               Court." There, the land was required :(or a road and the  contention was  that  the Government did not take the  opinion  of  the Surveyor General as to its fitness (1)  [1919] A.C. 646. 806 for such purpose.  On this ground it was contended that  the Governor’s  declaration could be questioned.  But  this  was negatived by the Privy Council.  Following this decision  in Vadlapatla Suryanarayana v. The Province of Madras(1) a Full Bench  of the Madras High Court held that a  declaration  by the  Provincial  Government under s. 6(1) of  the  Act  that certain  lands were required for a public purpose  is  final and,  where  there  is  no  charge  against  the  Provincial Government  that  it had acted in fraud of  its  powers  its action in directing the acquisition cannot be challenged  in a  Court of law.  Similar view has been taken  in  Samruddin Sheikh  v. Sub-Divisional Officer.(2) ; V. Gopalakrishna  v. The  Secretary, Board of Revenue, Madras (3); S.  Jagannadha Rao v. The State of Andhra Pradesh (4) ; Secretary of  State for  India  in  Council v. Akbar  Ali  (5).   Several  other decisions   to   the  same  effect,  some   of   them   post Constitution,  were also mentioned by the learned  Advocate- General,  which  take the same view as in  these  decisions. Not a single decision was however, brought to our notice  in which  it  has been held that the question as to what  is  a public purpose or whether it exists can be inquired into  by the  Courts  even in the absence of colourable  exercise  of power,  because s. 6(3) has become void under Art. 13(2)  of the  Constitution. It was next contended that sub-s. (3) of s.  6 cannot  stand in the way in a proceeding    under  Art. 226 or under  Art. 32  of  the  Constitution and in support  of  this  argument reliance was placed upon the decision in Chudalmuthu  Pillai v. State (6) ;  Maharaja Luchmeshwar  Singh v.  Chairman  of the  Darbhanga Municipality (7); (1) I.L R [1916] Mad. 153.(2) A.I.R (1954) Assam 81. (3) A.I.R  1954 Mad.362.(4) A I.R 196O A.P. 343. (5)  (1923)  I.L.R. 45 All. 413.  (6  ) I.L. R. [1932]  Tra. Cochin. 488, (7)  (1890) L.R. 17 nI.A. 90. 807 Rajindra Kumar Ruia v. Government of West Bengal (1) ; Major S.  Arjan  Singh  v. State of Punjab (2)  ;.  In  the  first mentioned case it was contended that the order was  actuated by   mala   fides   and  also  that   there   were   various irregularities  in  the  proceedings.  As  we  have  already indicated, if the declaration is vitiated by fraud, then the declaration  is  itself  bad  and  what  is  bad  cannot  be protected by sub-s. (3) of s. 6. In the next case the act of the  Court of Wards in handing over the ward’s lands  for  a nominal  consideration for a public- purpose was  challenged in a suit.  The challenge was upheld by the Privy Council on the ground that lawful possession could only be taken by the State  in strict compliance with the provisions of the  Land Acquisition Act.  The question raised here did not arise for consideration  in  that case.  In the other  two  cases  the declaration  was challenged under Art. 226 and in  both  the cases the challenge failed.  In the first of the two  latter mentioned  case  it failed on the ground that there  was  no fraud and in the second on the ground that the provisions of sub.s. (3) of s. 6 precluded the court from challenging  the validity of the declaration.  None of these cases, therefore

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support the contention of the petitioners. Moreover  we are not concerned here with the powers  of  the High Court under Art. 226 but with those of this Court.   It is  said, however that the bar created by s. 6(3) would  not stand in the way of this Court while dealing with a petition under Art. 32 and, therefore, it is open to us to  ascertain whether  an  acquisition  is for a public  purpose  or  not. While  it  is true that the powers of this Court  cannot  be taken away by any law which may hereafter be made unless the Constitution  itself  is amended we are here  faced  with  a provision of law which is a pre-Constitutional law and which is protected by the (1) A.I.R. 1952.  Cal. 573.  (2) I.L.R.[1958] Punjab 1451. 808 Constitution-to the extent indicated in Art. 31(5)(a) and an I attack on its validity on the ground that it infringes the right guaranteed by Art. 19(1)(f) has failed.   Therefore-it is a good and valid law and the restriction placed by it  on the powers of this Court under Art. 32 must operate. Though  we  are  of  the opinion that  the  courts  are  not entitled  to go behind the declaration of the Government  to the  effect that a particular purpose for which the land  is being  acquired is a public purpose we must  emphasise  that the  declaration  of the Government must be relatable  to  a public  purpose as distinct from a purely’ private  purpose. If  the purpose for which the acquisition is being  made  is not  relatable  to public purpose then a question  may  well arise  whether in making the declaration there has been,  on the  part of the Government a fraud on the  power  conferred upon it by the Act.  In other words the question would. then arise  whether  that  declaration was  merely  a  colourable exercise of the power conferred by the Act, and,  therefore, the declaration is open to challenge at the instance of  the party  aggrieved.  To such a declaration the  protection  of 6(3)   will  not  extend.   For,  the  question  whether   a particular action was the result of a fraud or not is always justiciable, provisions such as s. 6(3) notwithstanding. We  were  referred  by the  learned Advocate  General  to  a recent decision of the House of Lords in Smith v. East Elloe Rural District Council (1) to which reference was made by  a learned Advocate General.  In that case their Lordships were considering  the Acquisition of Land (Authorisation of  Pro- cedure)  Act, 1946, (9 and 10 Geo. 6, c. 49), Sch.   1,  Pt. IV,  paras 15 and 16.  Paragraph 15 (1) of Part IV, Sch.   1 to the Act provides as follows :               "If any person aggrieved by a compulsory               (1)   [1956] A.C. 736.               809               purchase   older  desires  to   question   the               validity thereof.....  on the ground that  the               authorisation  of compulsory purchase  thereby               granted  is not empowered to be granted  under               this  Act.......... he may, within  six  weeks               from   the  date  on  which  notice   of   the               confirmation  or  making of the  order....  is               first  published...... make an application  to               the High Court........"               Paragraph 16 provides as follows :               "Subject   to  the  provisions  of  the   last               foregoing  paragraph,  a  compulsory  purchase               order....  shall not.... be questioned in  any               legal proceedings whatsoever...... " The land having been made the subject of compulsory purchase the  owner brought an action in which among other things,  a declaration was added that the order was made and  confirmed

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wrongfully  and  in  bad  faith and  that  the  clerk  acted wrongfully  and  in  bad faith in procuring  its  order  and confirmation.  The House of Lords held by majority that  the action  could  not  proceed except  against  the  clerk  for damages  because  the  plain  prohibited  in  paragraph   16 precluded  the Court challenging the validity of the  order. They  also held that paragraph 15 gave no opportunity  to  a person  aggrieved to question the validity of  a  compulsory purchase  order on the ground that it was made or  confirmed in bad faith.  As we have already said the condition for the exercise  of  the  powers by the  State  Government  is  the existence of a public purpose (or the purpose of a  company) and  if the Government makes a declaration under s. 6(1)  in fraud  of the powers conferred upon it by that  section  the satisfaction on which the declaration is made is not about a matter with respect to which it is required to be  satisfied by the ’Provision and, therefore, its declaration is open to challenge as being without any legal effect.  We 810 are  not prepared to go as far as the House of Lords in  the above case. This brings us to the second argument advanced before us  on behalf  of  the petitioners.  The learned  counsel  contends that  there  could be no acquisition for  a  public  purpose unless  the  Government  had made  a  contribution  for  the acquisition  at  public  expense.   According  to  him   the acquisition  in  question was merely for the  benefit  of  a company  and  that the action of the Government was  only  a colourable exercise by it of its power to acquire land for a public  purpose.   The contention is that  before  making  a declaration under sub-s. (1) of s. 6 the Government ought to have  taken a decision that it will contribute  towards  the acquisition.   In  the case before us no such  decision  was taken  by the Government till ;September 29, 1961, that  is. just  one day after this writ petition was admitted by  this Court and stay order issued by it.  It is then said that the contribution   of  the  Government  towards  the   cost   of acquisition  being  a  very  small  fraction  of  the  total probable cost of acquisition the inference must be that  the acquisition  was  not  even partly at  public  expense  and, therefore, the declaration was a colourable exercise of  the power conferred by law.  Then it is said that not only  does the  declaration omit to state that the contribution of  the State towards the cost of acquisition was to be Rs. 100 only but also omits to mention that what was decided was that the Government  was  to  bear  only  a  part,  of  the  cost  of acquisition  and not the whole of it.  The  notification  is said to be thus misleading and to create the impression that the  entire  cost of the acquisition is to come out  of  the public   exchequer.   Finally  it  is  contended  that   the establishment  of  an  industry  by  a  private  party   for manufacturing refrigeration equipment cannot fall within the meaning of the expression ’Public purpose’. 811 It  is  no doubt true that the financial  sanction  for  the contribution  of  Re.  100  as  part  of  the  expenses  for acquisition  was  accorded  by  the  Finance  Department  on September  29, 1961.  No doubt also that a day prior to  the according  of  sanction this petition had been  admitted  by this  Court  and a stay order issued.  But  from  these  two circumstances it would not be reasonable to draw the  infer- ence  that  the  declaration made by the  Government  was  a colourable exercise of its power.  The- provisions of sub-s. (1)  of a. 6, however, do not require that the  notification made  thereunder must set out the fact that  the  Government

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had decided to pay a part of the expenses of acquisition  or even to state the extent to which the Government is prepared to make part contribution to the cost of acquisition. It is then contended that before the Government could  spend any  money  from the public exchequer for acquiring  land  a provision  his to be made in the budget and the  absence  of such   provision  would  be  a  circumstance  relevant   for consideration.  It is sufficient to say that the absence  of a  provision  in  the  budget in  respect  of  the  cost  of acquisition,  whole or part, cannot affect the  validity  of the declaration and that if Government does spend some money without allotment in the budget, its expenditure may perhaps entitle  the Accountant General to raise an audit  objection or  may  enable the Public Accounts Committee of  the  State Legislature  to criticism the Government.  But that is  all. Again,  where the expenditure is of a small amount like  Rs. 100  it may he possible for the Government to  make  payment from  Contingencies and thus avoid objections of this  kind. Whatever  that  may be, these are  not  circumstances  which would  suffice to show that the declaration was  colourable. It  was  stated at the bar by the  learned  Advocate-General that the entire scheme of esta- 812 blishing  a refrigeration factory in Punjab was examined  at various stages and at different levels of Government as well as by different ministries and it was then decided to make a part  contribution  towards  the cost  of  acquisition  from public funds. As required by the Financial Rules the consent of  the  Finance  Department had to  be  obtained  for  this purpose.   This particular stage occupied considerable  time and  that  is why there was a delay in  according  sanction. The  statement  of  the  learned  Advocate-General  was  not challenged  on  behalf  of the  petitioners.   Moreover  the declaration  under sub-a. (1) of s. 6 is clear on the  point that  the land is being acquired at public expense, and  the provisions  of  sub-a. (3) of a. 6 precluded  a  Court  from going behind such a declaration unless it is shown that  the Government  has in fact decided not to contribute any  funds out  of the public revenues for that purpose.  For,  if  the Government  had in fact taken a decision of that  kind  then the  exercise of the power to make an acquisition  would  be open to challenge as being colourable. Then  it  is contended that the contribution  by  the  State towards the cost of acquisition must be substantial and  not merely  nominal or token as in this case.  The  argument  is that though the law permits acquisition for a public purpose to  be made by the State by contributing only a part of  the cost  of acquisition that part cannot be a particle  and  in this  connection  reliance  was placed on  the  decision  in Chatterton  v.  Cave (1) which was followed  in  Ponnaia  v. Secretary  of State (2).  In the latter case the High  Court of  Madras  observed  that  ,,the  Legislature,  when   they provided that a part of the compensation should be paid from public  revenues, did not mean that this condition would  be satisfied-by payment of a particle, e. g. one anna in Rs. 5, 985".  In that case land was being acquired (1)  (1878) 3 App.  Cas. 483, 491, 492.  (2) A. I.  R.  1926 Mad. 1099. 813 for  making a road between two villages in 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 s. 6 of the  Act. It was also contended that the declaration made under sub-s.

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(1)  of  s.  6  could  not be  challenged  in  view  of  the provisions of sub-s. (3) of a. 6 and reliance was placed  on the  decision in Wijeyesekara v. Festing (1).  According  to the  High Court the fast that the Government’s share in  the cost of acquisition being 1/90,000 part of the amount, there was  no real and bona fide compliance with the terms of  the section  and  that this was an indication  of  the  illusory character of the object for which the provisions of the  Act were being made use of.  The High Court then referred to the decision in Chatterton’s case ( 2 ) and pointed out that the House of  Lords were averse to putting an interpretation  on the  words  "or  part thereof"  occurring  in  the  Dramatic Copyright  Act,  (3 & 4 William IV, c. 15) as would  make  a part  to mean a particle.  The High Court also  referred  to the  decision  in Maharaja Luchmemar Singh’s case (3  )  and held  that the acquisition was a colourable exercise of  the power conferred by the Act. This  decision  was not followed by the same High  Court  in Senja  Naicken v. Secretary of State (4) where it  was  held that the State’s contribution of one anna out of Rs. 926-8-6 for  acquiring  land  for a road, Rs.  926-7-6  having  been contributed by the ryots, was sufficient compliance with  s. 6  (1)  of  the  Act.  Both  these  decisions  came  up  for consideration  in  Vadlapatla Suryanarayanas  case  (5)  and there  Ponnaia’s case (3) was over-ruled and the view  taken in Senja Naickens case (4) was approved. (1)  (1926) I.L.R. 50 Mad. 308.(2) (1878) 3 App.  Cas.  483. 491, 492 (3) (1890) L.R. 17 I.A. 90.(4) (1926) 1 L.R. 6o mad. 308. (5) I.L.R. [1946] Mad, 153.(6) A. 1. R. 1926 Mad. 1099. 814 Chatterton’s  case  (1)  was  a  case  of  infringement   of copyright  where  two plays had been adapted from  a  common source  by the parties to the litigation.  In that  case  it was  accepted before the Court that the  Dramatic  Copyright Act protected ,parts" of dramatic work and prohibited  their use  by persons other than the proprietor of the  Copyright. It was pointed out that in the case of ordinary copyright of published  work  the protection was restricted only  to  the whole  of the work and did not extend to portions  of  those work.  The Dramatic Copyright Act also contained a provision directing  that infringement of the copyright would  entitle the proprietor to damages of not less than 40 shillings.  It was suggested that these differences indicated an  intention to  prevent the invasion of the dramatic copyright  indepen- dently  of  the quantity or materiality of  the  portion  of dialogue or dramatic incident proved to have been copied  by another.    Dealing  with  this  argument   Lord   Hatherley observed:               "Now  it  appears to me, my Lords,  that  this               argument  goes much too far.  As was  said  by               the counsel for the respondent, the  appellant               would  wish  to read the word  ’part’  in  the               Dramatic Copyright Act as ’particle’, so  that               the  crowing  of the cook in Hamlet’,  or  the               introduction of a line in the dialogue,  might               be  held  to be an invasion of  the  copyright               entitling   plaintiff  to  40s.  damages   and               consequently,  as the law stood I  believe  at               the time of the passing of the statute of 3  &               4  Will. 4, to the costs of his action,"  (pp.               491-2) Then  after  pointing  out  that while in  the  case  of  an ordinary  copyright  of published works a fair use  made  by others would not amount to a wrong

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(1)  1878) 3 App.  Cas. 483, 491,492. 815 justifying  an  action  at law,  the  position  of  dramatic performance is not the same he observed               "They  are  not  intended to  be  repeated  by               others  or to be used in such a way as a  book               may  be  used,  but  still  the  principle  de               minimis  non curat lex applies to  a  supposed               wrong  in taking a part of dramatic  works  as               well  as in 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  a               taking so minute in its extent and so trifling               in  its nature as not to incur  the  statutory               liability." It  is  clear, therefore, that the analogy  of  Chatterton’s case (1) cannot possibly apply to a case under the Act.   As was pointed out in Senja Naicken’s case (2) :               "Admittedly both of the litigants had  derived               their compositions from a common source and it               stands to reason that before you can compel  a               man to pay damages for stealing the product of               your brain, time and labour, you must be  able               to point out that any resemblance between  his               production and yours is not merely  accidental               but is a designed theft of the product of  our               brain.   Otherwise...... one might go  to  the               absurdity of objecting to a man using the same               words               (1) (1878) 3 App Cas. 483,491 492.               (2) (1826) I.L.R. 50 Mad.  So.               816               though in a different collocation as you  have               done."       .                .lm0               With these observations we agree.                Now,  as regards Maharaja Luchmeswar  Singh’s               case   (1).   The  facts  were   their.    The               plaintiff’s  land was under the management  of               the  Court  of Wards during his  minority.   A               notification  under  s.  6(  1)  of  the  Land               Acquisition Act, 1870 was made with respect to               certain  land belonging to the  plaintiff  for               being  acquired  by  the  Government  at   the               expense  of the Darbhanga Municipality  for  a               public  purpose,  that is, construction  of  a               public  ghat or landing place in the  town  of               Darbhanga.  But instead of complying with  the               provisions  of  the Land Acquisition  Act  and               enquiring  to  the  value  of  the  land,  the               Collector   who  was  the  Chairman   of   the               Municipality and also a representative of  the               Court of Wards took possession of the land and               handed  it  over  to  the  municipality.   The               compensation paid to the plaintiff was Re. 1/-               ,  an  amount agreed to by the  Manager.   The               plaintiff,    after    attaining     majority,               instituted  a suit for possession of land  and               for mesne profits.  His suit was dismissed  by

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             the  courts below and he preferred  an  appeal               before  the  Judical Committee  of  the  Privy               Council.  Allowing the appeal, their Lordships               observed :               "The  offer and acceptance of the rupee was  a               colourable attempt to obtain a title under the               Land  Acquisition Act without paying  for  the               land........" How  this case could at all have any bearing upon the  point which  arose for consideration in Ponnaia’s case we fail  to see.  This case is also relied on before us on behalf of the petitioners  and  we  have referred to it  earlier  in  this Judgment.  It has nothing whatsoever to do with the question of   contribution  by  the  State  to-wards  the   cost   of acquisition. (1) (1890) L.R. 17 I.A. 90. (2) A.I.R. 1926 Mad. 1099.         817 We would like to add that the view taken in Senja  Naicken’s case  (1)  has been followed by the various High  Courts  in India.   On  the basis of the correctness of that  view  the State Governments have been acquiring private properties all over the country by contributing only token amounts  towards the  cost  of acquisition.  Titles to many  such  properties would  be  unsettled if we were now to take  the  view  that ’partly  at  public expense’ means substantially  at  public expense.  Therefore, on the principle of state decision  the view  taken  in  Senja  Naicken’s  case(1)  should  not   be disturbed.  We would, however, guard ourselves against being understood  to  say that a token contribution by  the  State towards   the  cost  of  acquisition  will   be   sufficient compliance  with  the law in each and every  case.   Whether such  contribution meets the requirements of the  law  would depend  upon the facts of every case.  Indeed the fact  that the  State’s Contribution is nominal may well  indicate,  in particular circumstances that the action of the State was  a colourable  exercise of power.  In our opinion  ,part’  does not necessarily mean a substantial part and that it will  be open to the Court in every case which comes up before it  to examine whether the contribution made by the State satisfies the  requirement of the law.  In this case we are  satisfied that  it satisfies the requirement of law.  What is next  to be  considered  is whether the acquisition was  only  for  a company because the compensation was to come almost entirely out  of its coffers and, therefore, it was in reality for  a private  5 purpose as opposed to public purpose.   In  other words, the question is whether there was on the part of  the Government a colourable exercise of power.  Elaborating  the point  it  is said that the establishment of a  factory  for manufacturing  refrigeration  equipment is  nothing  but  an ordinary  commercial  venture  and  can  by  no  stretch  of imagination fall within the well-accepted 818 meaning of the expression ’public purpose’, that even if  it were  to  fall within that expression the factory is  to  be established  not  by  the  Government,  nor  by   Government participation  but solely by the respondent No. 6, a  public limited  concern  and  that, therefore,  the  concern  could acquire  land for such a purpose only after  complying  with the  provisions  of  Part  VII  and  that  the  use  of  the provisions of a.6(1) is merely a colourable device to enable the respondent No. 6 to do something, which, under terms of s.   6(1), could not be done. "Public purpose" as explained by this Court in Babu  Barkaya Thakur’s case (1) means a purpose which is beneficial to the

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community.   But whether a particular purpose is  beneficial or  is likely to be beneficial to the community or not is  a matter  primarily for the satisfaction of the State  Govern- ment.. In the notification under s. 6(1) it has been  stated that  the  IInd  is being acquired  for  a  public  purpose, namely,  for setting up a factory for manufacturing  various ranges of refrigeration compressors and ancillary equipment. It  was  vehemently  argued before us  that  manufacture  of refrigeration equipment cannot be regarded as beneficial  to the  community in the real sense of the word and  that  such equipment  will at the most enable articles of luxury to  be produced.  But the State Government has taken the view  that the manufacture of these articles is for the benefit of  the community.   No  materials have been placed before  us  from which  we  could infer that the view of the  Government,  is perverse or that its action based on it constitutes a  fraud on its power to acquire land or is a colourable exercise  by it of such power. Further,  the notification itself sets out the purpose,  for which  the land is being acquired.  That purpose, if we  may recall,  is  to  set up a factory  for  the  manufacture  of refrigeration compressors and (1) (1961) 1 S.C.R. 128. 819 ancillary equipment.  The importance of the under’taking  to a  State such as the punjab which has a ,surplus  of  fruit, dairy products etc. the general effect of the  establishment of  this  factory on foreign exchange resources,  spread  of education, relieving the pressure on unemployment etc., have been  set out in the affidavit of the respondent  and  their substantee     appears   in   the  earlier  part   of   this judgment.The   affidavits have not been controverted and we have, therefore, no hesitation in acting upon 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  carrying  out  a public purpose.   It  is  well established in the United States. of America that the  power of  eminent domain can be exercised for establishing  public utilities.  Such a power could, therefore, be exercised  for establishing  a  factory for  manufacturing  equipment  upon which  a  public utility depends.  It is,  therefore,  clear that  quite apart from the provisions of sub-s. (3) of s.  6 the  notification of the State Government under s. 6  cannot be successfully challenged on the ground that the object  of the  acquisition  is  not carry out a  public  purpose.   We cannot,  therefore, accept the petitioner’s contention  that the  action  of the Government in  making  the  notification under  sub-s. (1) of s. 6 was a colourable exercise  of  the power conferred by the Act. The next argument to be considered is whether there has been a  discrimination against the petitioners.  They claim  that as  they  intend to establish a  factory  for  manufacturing paper which 820 is also an article useful to the community they are as  good an industrial concern as the respondent No. 6 and the  State Government  in taking away land from them and giving  it  to respondent No. 6 is practising discrimination against them. In the first place it is denied on behalf of the respondents

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that the petitioners are going to establish a paper factory. It  is not disputed that no new factory can  be  established without  obtaining a licence from the appropriate  authority under  the Industries Development and Regulation Act,  1951, and  that  the petitioners do not hold any licence  of  this kind.   According  to  the petitioners,  however;  they  had entered  into an agreement with the firm of Messrs.   R.  S. Madhoram & Sons for establishing such a factory and that  in collaboration with them they propose to establish a  factory on the lands which are now being acquired.  It is true  that a  licence  for  erecting a paper  factory  was  granted  to Messrs.   R. S. Madhoram and Sons but the location  of  that factory  is to be in Uttar Pradesh and not in the  State  of Punjab.   Without therefore, obtaining the approval  of  the appropriate authority the location of the factory could  not be shifted to the land in question which, as already stated, is  situate in the State of Punjab.  Moreover  this  licence has  since been cancelled on the ground that Messrs.  R.  S. Madhoram   and  Sons  have  taken  no  steps  so   far   for establishing  a paper factory.  It is necessary  to  mention that  the  petitioners  allege that  this  cancellation  was procured by the respondents with the object of impeding  the present  petitioners.   With  that, however,  we,  need  not concern  ourselves because that licence as it stood  on  the date  of  the  petitions did riot  entitle  Messrs.   R.  S. Madhoram  and  Sons to establish a factory in the  State  of Punjab. 821 Apart  from  that  it is always open to  the  State  to  fix priorities  amongst  public utilities  of  different  kinds, bearing  in  mind  the  needs  of  the  State  the  existing facilities  and other relevant factors.  In the  State  like the Punjab where there is a large surplus of fruit and dairy products there is need for preserving it.  There are already in  existence a number of cold storages in that State.   The Government  would,  therefore,  be acting  reason.  ably  in giving priority to a factory for manufacturing refrigeration equipment which would be available for replacement in  these storages and which would also be available for equipping new cold storages. Apart from this it if; for the State Government to say which particular  industry  may be regarded as beneficial  to  the public  and to decide that its establishment would  serve  a public purpose.  No question of discrimination would, there- fore, arise merely by reason of the fact that Government has declared that the establishment of a particular industry  is a  public purpose.  The challenge to the notification  based on Art. 14 of the Constitution must, therefore, fail. It  is the last and final contention of the  petitioners  in these  petitions  that the notifications under ss. 4  and  6 cannot  be  made  simultaneously and  that  since  both  the notifications  were  published in the Gazette  of  the  same date,  that is, August 25, 1961, the provisions of law  have not been complied with.  The argument is that the Act  takes away from a person his inherent right to hold and enjoy that property and, therefore, the exercise of the statutory power by the State to take away such property for a public purpose by  paying  compensation must be subject to  the  meticulous observance  of every provision of law entitling it  to  make the acquisition.  It is pointed out that under sub.s. 822 a  particular  land  "is likely to be needed  for  a  public purpose".   Thereafter under s. 5A a person  interested  in. the  land has a right to object to the acquisition  and  the whole  question has to be finally considered and decided  by

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the  Government  after  hearing such  person.   It  is  only thereafter that in a normal case the Government is  entitled to  make a notification under sub-s. (1) of s,  6  declaring that it is satisfied "after considering the report, if  any, made under s. 5A, sub-s. (2) " that the land is required for a  public  purpose.   This  is the  sequence  in  which  the notifications have to be made.  The reason why the  sequence has  to be followed is to make it clear that the  Government has applied its mind to all the relevant facts and then come to a decision or arrived at its satisfaction even in a  case where  the  provisions of s. 5A need not be  complied  with. Undoubtedly the law requires that notification under  sub-s. (1)  of  s.  6 must be made .only after  the  Government  is satisfied  that a particular land is required for  a  public purpose.   Undoubtedly  also where the  Government  has  not directed under sub-s. (4) of s. 17 that the provisions of s. 5A Deed not be complied with the two notifications, that is, under  sub-s. (1) of s. 4 and sub-s. (1) of s. 6  cannot  be made simultaneously.  But it seems to us that where there is an emergency by reason of which the State Government directs under sub-s. (4) of s. 17 of the Act that the provisions  of s. 5A need not be complied with, the whole matter, that  is, the actual requirement of the land for a public purpose must necessarily  have  been  considered at  the  earliest  stage itself that is when it was decided that compliance with  the provisions  of s. 5A be dispensed with.  It  is,  therefore, difficult to see why the two notifications cannot, in such a case,  be  made simultaneously.  A notification  under  sub- s.(1) one of s. 4 is a condition precedent to the making  of notification  under sub-a. (1) of s. 6. If  the  Government, therefore, takes a decision to 823 make such a notification and, there after, takes two further decisions,  that  is, to dispense with compliance  with  the provisions  of  s.  5A and also to  declare  that  the  land comprised in the notification is in fact needed for a public purpose, there is no departure from any provision of the law even though the two notifications are published on the  same day.   In  the case before us  the  preliminary  declaration under s. 4(1) was made on August 18, 1961, and a declaration as  to  the satisfaction of the Government  on   August  19, 1961,  though both of them were published in the Gazette  of August 25, 1961.  The preliminary declaration as well as the subsequent  declaration  are  both required  by  law  to  be published  in  the official gazette.  But the law  does  not make the prior publication of notification under sub-s.  (1) of  s.  4  a condition precedent to  the  publication  of  a notification under sub-s. (1) of s. 6. Where acquisition  is being   made  after  following  the  normal  procedure   the notification under the latter section will necessarily  have to  be  published subsequent to the notification  under  the former  section  because in such a case  the  observance  of procedure  under  s.  5A  is  interposed  between  the   two notifications.   But where s. 5A is not in the way there  is no  irregularity  in publishing those notifications  on  the same  day.  The serial numbers of the notifications are  No. 5809/41  B(1)/61/18755 dated August 18, 1961, and 5809-4  IB (1)/61/18760 dated August 19, 1961, and it would appear from them  that the preliminary notification did in fact  precede the final declaration. These  were  the  only objections raised before  us  and  as everyone of them has failed the petitions must be dismissed. We  accordingly  dismiss them with costs.  As  however,  all petitions were heard together there will be only one hearing fee.

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824 SUBBA  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 a sum  of  Rs.  4,60,000  in February,  1961,  is situate in  village  Meola  Maharajpur, Tehail  Balabhgarh, District Gargaon.  On August  25,  1961, the Governor of Punjab published a notification dated August 18,  1961,  in the Official Gazette under s.4  of  the  Land Acquisition  Act, 1894, hereinafter called the Act,  to  the effect  that  the said land was likely to be needed  by  the Government  at  public expense for a  purpose,  namely,  for setting  up  a factory for manufacturing various  ranges  of refrigeration  compressors and ancillary  equipment.   Under s.17 of the Act the appropriate Government directed that the provisions  of s.5A will not apply to the said  acquisition; On  the same day, another notification under s.6 of the  Act dated August 19, 1961, was published to the effect that  the Governor  of, Punjab was satisfied that the  land  specified therein was required by the Government at public expense for the said purpose.  On Septemher 29, 1961, the Government  of Punjab  sanctioned an expense of Rs. 100 for the purpose  of acquisition  of  the said land.  The validity  of  the  said notification is questioned on various grounds.  But as I  am in  favour of petitioners on the question of  interpretation of  the  proviso  to s.6 of the Act, I  do  not  propose  to express my opinion on any other question raised in the case. The material part of s.6(1) of the Act reads:               "Subject  to  the provisions of  Part  VII  of               this Act, when the appropriate Government is               825               satisfied,  after considering the  report,  if               any,  made under section 5A, sub-section  (2),               that  any  particular  land is  needed  for  a               public   purpose,   or  for   a   Company,   a               declaration shall be made to that effect under               the signature of Secretary to such  Government               or of some officer duly authorized to  certify               its order                Provided  that no such declaration  shall  be               made unless the compensation to be awarded for               such  property is to be paid by a Company,  or               wholly  or  partly out of public  revenues  or               some  fund  controlled or managed by  a  local               authority." Under  that  section,  the Government  may  declare  that  a particular  land  is needed for a public purpose  or  for  a company; and the proviso imposes a condition on the issuance of  such  a  declaration.  The condition  is  that  no  such declaration  shall  be made unless the  compensation  to  be awarded  for such property is to be paid by the company  or, wholly, or ’partly out of the public revenues.  A reasonable construction  of  this provision uninfluenced  by  decisions would  be that in the case of an acquisition for a  company, the entire compensation will be paid by the company, and  in the  case  of  an  acquisition  for  a  public  purpose  the Government  will pay the whole or a substantial part of  the compensation out of public revenues.  The underlying  object of the section is apparent: it is to provide for a safeguard against  abuse  of power.  A substantial  contribution  from public   coffers   is  ordinarily  a  Guarantee   that   the

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acquisition is for a public purpose.  But it is argued  that the  terms of the section are satisfied if  the  appropriate Government contributes a nominal sum, say a pie, even though the  total  compensation payable may run into  lakhs.   This interpretation  would  lead to extraordinary  results.   The Government  may acquire the land of A for B for  a  declared public purpose, contributing a pie towards the 826 estimated  compensation of say, Rs. 1,00,000.  If  that  was the intention of the Legislature, it would not have  imposed a condition of payment of part of the compensation, for that provision would not serve the purpose for which it must have bean  intended.  Therefore, a reasonable meaning  should  be given  to  the expression "wholly or partly".   The  proviso says that the compensation shall be paid by the company  or, wholly  or  partly,  out of  public  revenues.   A  contrast between these two modes of payment suggests the idea that in one  case  the compensation must come out of  the  company’s coffers  and in the other case the whole or some  reasonable part  of  it should come from public  revenues.   This  idea excludes  the  assumption that practically  no  compensation need come out of public revenues.  The juxtaposition of  the words  "wholly or partly" and the disjunctive  between  them emphasize the same idea.  It will be incongruous to say that public revenue shall contribute rupees one lakh or one  pie. The  payment  of  a part of a compensation  must  have  some rational relation to the compensation payable in respect  of the  acquisition for a public purpose.  So construed  "part" can   only  mean  a  substantial  part  of   the   estimated compensation.   There cannot be an exhaustive definition  of the  words "substantial part of the compensation".  What  is substantial part of a compensation depends upon the facts of each  cue,  the  estimate  of  the  compensation  and  other relevant   circumstances.   While  a  court  will   not   go meticulously into the question to strike a balance between a part  and  a whole, it will certainly be in  a  position  to ascertain  broadly whether in a particular Case  the  amount contributed  by the Government towards compensation  is  so, illusory  that it cannot conceivably be substantial part  of the consideration.  There is some conflict of view  827 on   this  question.   The House of Lords in  Chatterton  v. Cave (1) defined the word "part" in the context of     the provisions  of the Dramatic Copyright Act. The words in  the statute   were  "Production  or  any  part  thereof".    The plaintiffs  therein were the proprietors of a drama  called, "The  Wandering Jew" and it was alleged that  the  defendant produced  a drama  on the same subject.  It was  found  that the drama of the defendant was not, except in respect of two scenes  or points, a copy from, or a  colourable  limitation of, the drama of the plaintiffs.  In that context. the House of  Lords  construed the relevant words "production  or  any part thereof." Lord O’Hagan observed :               " ’Part’, as was observed, is not  necessarily               the  same  as "particle" and there  way  be  a               taking so minute in its extent and so trifling               in  its nature as not to incur the  statutable               liability." This  decision  may  not  be  directly  in  point,  but  the construction placed upon the expression "Part" is of general application.   In  the context of that  statute,  the  court found  that  the Legislature clearly intended by  the  words "any part’ a real substantial part.  A division Bench of the Madras High Court, consisting of  Spencer and Ramesam,  JJ., directly considered this  point in Ponnaia v.  Secretary  of

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State (2) .    There, a total sum of Rs. 5,985 required  for the acquisition of the property of the appellant therein and the  Government  contributed  from  Provincial  revenues  an amount  of one anna towards that compensation.  The  learned Judges  held  that  it was an  indication  of  the  illusory character of the object for which the provisions of the  Act had  been  made use of Adverting to the  argument  that  any small contribution by the Government (1) (1878)3 App.Cas.483,498.  (2) A.I.R. 1426 Mad. 1099. 828 would  satisfy the requirement of s.6 of the  Act,  Ramesam, J., observed at p. 1100 :               "We  think  that the  Legislature,  when  they               passed  the  Land  Acquisition  Act,  did  not               intend that owners should be deprived of their               ownership by a mere device of private  persons               employing the Act for private ends or for  the               gratification of private spite. or malice." These   are  weighty  observations  of  a  judge  of   great experience,  who was also the Government Pleader  before  he became a judge of the, Madras High Court.  The  observations also  indicate  the  statutory  object  in  insisting  on  a substantial contribution from public revenues, for a  strict insistence thereon would prevent to a large extent the abuse of  power under the Act.  But unfortunately the  correctness of this decision was not accepted by another division  Bench of  the same High Court, consisting of Odgers  and  Madhavan Nair,  JJ.,  in Senja Naicken v. Secretary State  for  India (1).   I  have carefully gone %rough the  judgment  in  that case,  and,  with  great respect to the  learned  Judges,  I cannot  see  any acceptable reasons for departing  from  the earlier  view of the same court.  Odgers,  J.,  concentrated his  criticism of the earlier judgment more on the  reliance by  the earlier Bench on the decision of the House of  Lords than on the intrinsic merits of the decision itself.  It  is true that the learned Judges in the earlier decision  relied upon  the observations of the House of Lords, but  that  was only.  in  support of their conclusion  why  the  expression "part" should not be understood as a particle.  But the main reason  they  gave was that having regard to the  object  of that proviso, the Legislature in using the word "part" could have  only meant a substantial part or otherwise the  object would be (1) (1926) I.L.R. 50 Mad. 308.  829 defeated and the abuse of power which it intended to prevent could  easily  be perpetrated under the colour of  the  Act. The  second  reason given by Odgers, J. was  stated  by  the learned, Judge thus at p.314 :               "  I  invited  the learned  Advocate  for  the               appellant  to say where a particle" would  end               and  "part" begin of this sum of Rs. 600.   It               is  true an anna is a very small part  of  Rs.               600.  But nevertheless it is a part. This adherence to the strict letter in complete disregard of the  spirit of the section certainly defeats the purpose  of the  legislation.  The word "’partly" in the proviso  should be  construed in the setting in which it is used and not  in vacuum, as the earned Judge sought to do.  The third  reason the learned Judge gives for his conclusion was stated at  p. 315 thus               "Suppose  on appeal the compensation had  been               enhanced.   There is no doubt  the  Government               would have to defray the extra sum out of  the               public revenues and having once undertaken the

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             acquisition   they  could  not  call  on   the               constituents again." This comment again I in my view, is beside the point.  It is not the duty of the Government to meticulously fix a  figure ;  it  may  agree  to bear  a  definite  proportion  of  the compensation  that may ultimately be awarded to  a  claimant and  in  that  even subsequent variations  by  hierarchy  of tribunals would not cause any difficulty, for the proportion would attach itself to the varying figures.  That apart,  it need  not  be  a particular  fraction  of  the  compensation ultimately awarded.  If the Government agrees to  contribute a substantial part of the 830 estimated  compensation that would meet the requirements  of the section.  The other learned Judge, Madhavan Nair, J., in substance  agreed with the judgment of Odgers, J.,  and  did not  disclose any additional reasons for differing from  the decision of the earlier Bench.  In my’ view, the decision in Senja  Naicken  v. Secretary of State (1)  is  not  correct. These two were considered by a Full Bench of the Madras High Court in Suryanarayana v. Province of Madras(2).  There  Sir Lionel  Leach,  C.J., delivering the judgment  of  the  Full Bench, noticed the judgment of the division Bench in Ponnaia v.  Secretary of State (3) and the criticism offered on  the judgment  by  the later division Bench in Senja  Naicken  v. Secretary of State (1) and observed :               "We   are  in  entire  agreement   with   this               criticism."               Then  the learned Chief Justice  proceeded  to               observe:               "In interpreting the proviso we can only  have               regard to the words used and, in our judgment,               it  is sufficient compliance with the  proviso               if  any part of. compensation is paid  out  of               public  funds.   One  anna is a  part  of  the               compensation.  It is true it is a small  part,               but it is nevertheless a part." This  literal interpretation of the word "part" de hors  the setting  in  which that word appears in the section,  in  MY view,  makes  the condition imposed on the exercise  of  the jurisdiction   by  the  Government  meaningless   and   also attributed  to  the  Legislature an intention  to  impose  a purposeless and ineffective (1)  (1926)  I.L.R.  50 Mad. 308.  (2)  I.L.R.  (1946)  Mad. 153,158. (3) A.I.R. 1926.  Mad. 1099.  831 formality.   For the reasons already given, I cannot  accept the  correctness of this judgment.  I, therefore, hold  that unless  the  Government agrees to contribute  a  substantial part  of the compensation, depending upon the  circumstances of  each case, the condition imposed by the proviso  on  the exercise  by the appropriate Government of its  jurisdiction is not complied with.  In the instant case it is  impossible to  say  that  a  sum  of  Rs.  100  out  of  an   estimated compensation which may go even beyond Rs. 4,00,000 is in any sense   of  the  term  a  substantial  part  of   the   said compensation.    The  Government  has  clearly  broken   the condition  and, therefore, it has no jurisdiction  to  issue the declaration under s. 6 of the Act. In  this view it is not necessary to express my  opinion  on the other questions raised in this case. In   the  result  the  said  notification  is  quashed   and respondents 1 to 5 are hereby prohibited from giving  effect to   the  said  notification  and  taking  any   proceedings

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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. 832