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PETITIONER: BABU BARKYA THAKUR

       Vs.

RESPONDENT: THE STATE OF BOMBAY AND OTHERS.

DATE OF JUDGMENT: 08/08/1960

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SARKAR, A.K. WANCHOO, K.N. SHAH, J.C.

CITATION:  1960 AIR 1203  CITATOR INFO :  R          1961 SC 343  (5,7)  R          1962 SC 764  (5,21)  R          1963 SC 151  (21,34,53)  RF         1965 SC 646  (9)  RF         1965 SC 995  (6)  RF         1966 SC1593  (15)  R          1966 SC1788  (18,20)  D          1967 SC1074  (8)  O          1970 SC 564  (4)  RF         1971 SC 306  (5,10)  D          1973 SC1150  (9)  RF         1973 SC1461  (1017)  R          1978 SC 597  (128,129)  RF         1980 SC1678  (3)  R          1985 SC 736  (5,14)  D          1985 SC1622  (13,15)  RF         1992 SC1827  (2)

ACT: Land Acquisition--Preliminary notification--Land needed  for company--Non-mention     of     public     purpose--Legality Proceedings, if violate fundamental rights--Land Acquisition Act,  1894  (1 of 1894), ss. 4, 5A, 6,  40--Constitution  of India, Arts. 19(1)(f), 31.

HEADNOTE: By  a notification under s. 4 of the Land  Acquisition  Act, 1894,  the  State  of Bombay  (now  Maharashtra)  sought  to acquire  certain lands, including those of  the  petitioner, which  were likely to be needed by a company,  manufacturing steel  bars  and  rods, for its factory  and  buildings  and appointed a Special Land Acquisition Officer to function  as a  Collector under s. 5A of the Act.  The petitioner  by  an objection  filed  before the said officer  denied  that  the lands were required for a public purpose and prayed that the proceedings be quashed.  By his petition to this Court under Art.  32 of the Constitution the petitioner  challenged  the legality  of the notification under s. 4 of the Act  on  the ground that it did not in terms say that the acquisition was

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for  a public purpose, and that the acquisition  proceedings infringed Arts. 19 and 31 of the Constitution. Held, that it is not essential that a notification under  S. 4 of the Land Acquisition Act, 1894, should expressly  state that 129 the  land  sought  to be acquired is  needed  for  a  public purpose.   Where  the land is required for  a  company,  the requirement  of  the  law will be sufficiently  met  if  the appropriate  Government  is satisfied on a report  under  S. 5A(2)  or  by  an enquiry under s. 40 of the  Act  that  the purpose of the acquisition is the same as contemplated by s. 40 of the Act. It is apparent from the definitions of the expressions  com- pany  ’  and ’public purpose’ contained in s. 3 of  the  Act that  the former is used in a very comprehensive  sense  and the  latter  is  used in its  generic  sense  including  any purpose  which may benefit even a fraction of the  community and such purposes as are mentioned in s. 40 of the Act  must fall within its ambit. State  of  Bombay  v. Bhanji Munji,  [1955]  1  S.C.R.  777, referred to. A notification under s. 4 of the Act envisages a preliminary investigation and it is only under s. 6 that the  Government makes a firm declaration.  It is not, therefore, correct  to say  that a defect in the notification can be fatal  to  the acquisition   proceedings   and   particularly   where   the acquisition  is  for a company and investigation has  to  be made  under  s.  5A  or  s.  40  after  the  issue  of   the notification.   In  this  view of  the  matter  the  present application must be premature. Clause  (6) of the Art. 31 has obviously no  application  to the  Land Acquisition Act, 1894, and so it is saved by  Art. 31(5)(a)  of  the  Constitution  even  if  it   contemplates acquisition  for  a company which may or may not  be  for  a public purpose. Lilavati Bai v. State of Bombay, [1957] S.C.R. 721, referred to. The attack under Art. 19(i)(f) of the Constitution must also fail  in  view  of the decision of this Court  in  State  of Bombay v. Bhanji Munji, [1955] 1 S.C.R. 777.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 134 of 1959. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of fundamental rights. J.   C. Bhatt, R. Ganapathy Iyer and G. Gopalakrishnan,  for the petitioner. N.   S. Bindra, R. H. Dhebar and T. M. Sen, for  respondents Nos. 1 and 2. S.   K.  Kapur,  P.  M.  Mukhi and  B.  P.  Maheshwari,  for respondent No. 3. 1960.  August 8. The Judgment of the Court was delivered by 17 130 SINHA  C.J.-This petition under Art. 32 of the  Constitution impugns  the  constitutionality  of  the  land   acquisition proceedings  with particular reference to  the  notification under s. 4 of the Land Acquisition Act (hereinafter referred to  as " the Act ") in respect of an   area of  land  within the  district of Thana in the State of Bombay, now known  as the State of Maharashtra. In order to appreciate the controversy raised in this  case,

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it  is  necessary  to  state  the  following  facts.   By  a notification dated April 3, 1959, the first respondent,  the State  of  Bombay (now Maharashtra) under s. 4 of  the  Land Acquisition Act of 1894, stated that the lands specified  in the  schedule attached to the said notification were  likely to  be  needed  for the purposes of  the  third  respondent, Messrs.   Mukund  Iron  &  Steel  Works  Ltd...  a   company registered under the Indian Companies Act, 1913, and  having its registered office at Kurla, Bombay No. 37, in the  State of   Maharashtra,  for  its  factory  buildings  etc.    The notification  further stated that under cl. (c) of s.  3  of the  Act, the Government was pleased to appoint the  Special Land Acquisition Officer, the second respondent, to  perform the functions of the Collector under s. 5A of the said  Act. The land in which the petitioner, who is a citizen of India, claims to be interested as owner is included in the schedule aforesaid.   The  petitioner  appeared  before  the   second respondent  aforesaid and after several adjournments  lodged objections  on June 9, 1959 and also made  oral  submissions through his Advocate on that date and the day following, and requested the second respondent to quash the proceedings  on the ground that the lands contained in the notification were not required for any public purpose and that the proceedings were vexatious and malicious.  It was further stated  before the   second  respondent  that  the  third  respondent   had negotiated  by  private  treaty  for  the  purchase  of  the notified  area.   The second  respondent  adjourned  further hearing  of the case in order to enable the  petitioner  and the  third respondent to come to an amicable settlement.   A further  hearing took place before the second respondent  on July 15, 1959.  On 131 that date the petitioner proposed to lead evidence of owners of several pieces of land included in the area notified  for acquisition to prove that the lands included in the schedule to the notification were not as a matter of fact required by the  third  respondent for any public purpose and  that  the third respondent had even negotiated for the purchase of the said  lands  by private treaty, but  the  second  respondent refused  permission to lead such evidence on behalf  of  the petitioner. The petitioner raises a number of questions of law attacking the  constitutionality of the land  acquisition  proceedings and  prays for orders or directions to the State  Government not  to give its consent to the aforesaid acquisition  under s.  39 of the Act nor to enter into any agreement  with  the third  respondent  under  s. 41 of the Act nor  to  issue  a notification  under s. 6 of the Act declaring that the  land in  question is needed for a public purpose,  because  after such  a  declaration the petitioner may be deprived  of  the opportunity of contending that the land was not needed for a public purpose. The third respondent, through its Business Manager, has  put in  an affidavit in answer to the petitioner’s case and  has contended  that  this  writ petition is  premature  and  not maintainable, that so far, only a notification under s. 4 of the Act has been issued and objections under s. 5A on behalf of the petitioner have been heard by the second  respondent, that  the  State Government has yet to be  satisfied  as  to whether  the acquisition is for purposes specified in s.  40 of the Act and so long as the previous consent of the appro- priate Government has not been given, the provisions of  ss. 6  to  37 of the Act cannot be put into  operation.   It  is denied that the acquisition is not for a public purpose  and that the proceedings are vexatious or malicious.  The  third

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respondent does not admit that the second respondent refused permission  to  the petitioner to lead  any  evidence.   The averments  in the petition on the merits of the  controversy are denied.  It is stated on behalf of the third  respondent that public are vitally interested in the production of this 132 Company, the chief products being steel bars and rods  which are  in great public demand and are of such vital  necessity to  the  country that their very  production,  distribution, supply  and  price are controlled by  the  Government.   The products  of the Company are consumed directly in  bulk  for public  utility projects like dams, hydroelectric  projects, roads,  railways,  industrial plants and  housing  projects, both in the public and private sectors, which constitute the core  of the several five year plans of the Government.   It is  further stated that the Company (respondent No.  3)  has included in its proposed industrial expansion projects to be established  on  the land sought to be  acquired,  extensive provisions  for  housing for a large  number  of  employees’ families  as also for their welfare by providing for  parks, gardens,  playgrounds,  medical relief  centre  and  similar other  amenities for the welfare of the employees and  their families.   All those projects, it is claimed on  behalf  of the  third  respondent, are a "  highly  commendable  public purpose " which is far more advantageous to the community in general than to shareholders of the Company.  It is  further stated   that   the  first  respondent   made   a   detailed investigation  about  the usefulness to the  public  of  the expansion  project  of  the  Company  including   employees’ housing  schemes  and  welfare  projects  and  when  it  was satisfied  about, the bona fides of the  respondent  Company and the genuineness and urgency of their projects and  their utility  to the public that the first  respondent  published the notification under s. 4 of the Act on April 3, 1959. The  affidavit  sworn to by the second  respondent,  Special Land   Acquisition  Officer,  Thana,  also   questions   the maintainability of the writ petition and generally  supports the case sought to be made out by the third respondent.   It is  also stated on his behalf that the petitioner or any  of the  other  persons  interested in the  land  sought  to  be acquired  did  not  produce any evidence  and  that  it  was absolutely  incorrect to say that he prevented  anyone  from leading   any  evidence  as  alleged.   The   Special   Land Acquisition  Officer  has  made  the  following  categorical statements:- 133 "It is denied that the acquisition of the said lands for the purpose  of the third respondent is in no way useful to  the public or that the public are not entitled to the use of any of the works of the Company as alleged by the petitioner.  I say  that the products which are being produced and will  be produced  are  used and intended to be used  inter  alia  in public  undertakings  intended for  the  general  industrial development of the country.  It is denied that the  proposed acquisition  is merely for the benefit of  few  individuals, namely,  the shareholders of the Company as alleged  by  the petitioner." Further on he adds the following:- " With reference to paragraph 13 of the said petition, it is denied  that  I did not permit the petitioner  to  lead  any evidence  before  me  as alleged by  the  petitioner.   This allegation, I say, is absolutely dishonest and false.  It is denied  that  the notification issued  by  Government  under section 4 of the said Act is not bona fide or is an abuse of the powers vested in Government.  It is denied that the said

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notification  is  illegal or that, it is not  made  in  good faith ". On these allegations and counter allegations the  petitioner has moved this Court to exercise its powers under Art. 32 of the Constitution on the grounds that the notification  under s.  4  of  the Act is illegal,  that  the  land  acquisition proceedings  are in violation of Arts. 14, 19 and 31 of  the Constitution  and that the acquisition is not for  a  public purpose and is mala fide. In  order to determine the present controversy, it  will  be convenient,   at  this  stage,  to  examine   the   relevant provisions of the Act.  The Act has the following preamble:- "  Whereas  it  is  expedient  to  amend  the  law  for  the acquisition  of  land  needed for public  purposes  and  for Companies and for determining the amount of compensation  to be made on account of such acquisition ;......... In the definition section 3, the definitions of " Company  " and  "  public purpose " are particularly  noteworthy.   The expression " Company " has been used in a very comprehensive sense of including not only 134 the Companies registered under several statutes, Indian  and English,  but also includes a society registered  under  the Societies Registration Act of 1860 and a registered  society within  the meaning of the Co-operative Societies Act.   The expression  "  public  purpose’ includes  the  provision  of village   sites  in  districts  in  which  the   appropriate Government  shall  have  declared  by  notification  in  the official gazette that it is customary for the Government  to make  such  provision.   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.    The  proceedings  begin  with   a   Government notification under s. 4 that land in any locality is  needed or  is likely to be needed for any public purpose.   On  the issue of such a notification it is permissible for a  public servant  and  workmen to enter upon the land to  do  certain acts  specified therein with a view to ascertaining  whether the  land  is  adapted  for the purpose  for  which  it  was proposed to be acquired as also to determine the  boundaries of  the  land  proposed  to be included  in  the  scheme  of acquisition.   It will be noticed that though  the  preamble makes  reference  not only to public purposes, but  tlso  to Companies,  the  preliminary  notification under  s.  4  has reference only to public purpose and not to a Company Section  5A, which was inserted by the amending Act of  1923 and makes provision for hearing of objections by any  person interested in any land notified under s. 4, makes  reference not  only to public purpose, but also to a Company.   It  is noticeable that s. 5A predicates that the notification under s.  4(1)  may  not only refer to land needed  for  a  public purpose, but also to land needed for a Company and after the enquiry  as  contemplated  by s. 5A has been  made  and  the Collector  has  heard  objections, if  any,  by,  interested parties he has to submit his report to the Government  along with  the  record  of the proceedings held by  him  and  his recommendations   on   the   objections.    Thereupon,   the Government has to make up its mind whether or not 135 the  objections  were well-founded and the decision  of  the appropriate Government of those objections is to be  treated as  final.   If  the  Government  decides  to  overrule  the objections  and  is satisfied that the  land,  the  subject- matter  of the proceedings, was needed for a public  purpose

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or  for  a  Company, a declaration has to be  made  to  that effect.   Such  a  declaration has to be  published  in  the official  gazette and has to contain the particulars of  the land  including  its approximate area and  the  purpose  for which  it  is needed.  Once the declaration under s.  6  has been made, it shall be conclusive evidence that the land  is needed  for a public purpose or for a Company.  Then  follow the  usual Proceedings after notice is given to the  parties concerned  to claim compensation in respect of any  interest in  the  land in question ; and the award after  making  the necessary  investigation as to claims to conflicting  title, the compensation to be allowed in respect of the land,  and, if  necessary, apportionment of the amount  of  compensation amongst  the persons believed to be interested in  the  land under  acquisition.   We  are not concerned  here  with  the proceedings that follow upon the award of the Collector  and the matters to be agitated therein. From  the preamble as also from the provisions of ss. 5A,  6 and 7, it is obvious that the Act makes a clear  distinction between acquisition of land needed for a public purpose  and that  for a Company, as if land needed for a Company is  not also for a public purpose.  The Act has gone further and has devoted Part VII to acquisition of land for Companies and in sub-s.  (2) s. of 38, with which Part VII  begins,  provides that  in the case of an acquisition for a Company,  for  the words  " for such purpose " the words " for purposes of  the Company " shall be deemed to have been substituted.  It  has been  laid  down  by s. 39 that the machinery  of  the  Land Acquisition Act, beginning with s. 6 and ending with s.  37, shall  not  be  put into  operation  unless  two  conditions precedent are fulfilled, namely, (1) the previous consent of the  appropriate  Government has been obtained  and  (2)  an agreement  in  terms  of  s. 41 has  been  executed  by  the Company. 136 The  condition precedent to the giving of consent  aforesaid by the appropriate Government is that the Government has  to be  satisfied on the report of the enquiry envisaged  by  s. 5A(2) or by enquiry held under s. 40 itself that the purpose of  the acquisition is ;to obtain land for the  erection  of dwelling house-, for workmen employed by the Company or  for the  provision of amenities directly connected therewith  or that such acquisition is needed for the construction of some work  which is likely to prove useful to the  public.   When the Government is satisfied as to the purposes aforesaid  of the  acquisition  in question,  the  appropriate  Government shall  require  the  Company  to  enter  into  an  agreement providing for the payment to the Government (1) of the  cost of the acquisition, (2) on such payment, the transfer of the land  to  the Company and (3) the terms on  which  the  land shall  be  held by the Company.  The agreement has  also  to make  provision for the time within which the conditions  on which  and  the  manner  in which  the  dwelling  houses  or amenities shall be erected or provided and in the case of  a construction of any other kind of work the time within which and  the conditions on which the work shall be executed  and maintained  and  the  terms on which  the  public  shall  be entitled to use the work. Such are the relevant provisions of the Act that we have  to consider   with   reference   to   the   question   of   the constitutionality  of the land acquisition  proceedings  now impugned.  The first ground of attack is based on Art. 31(2) of  the Constitution.  The provisions of Art. 31(2) make  it clear beyond all controversy that in order that property may be  compulsorily  acquired, the acquisition must  be  for  a

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public  purpose and by authority of law.  But Art.  31(5)(a) lays  down  that  nothing  in  cl.  (2)  shall  affect   the provisions of any existing law other than a law to which the provisions  of cl. (6) applies (and the Act is  obviously  a law  to  which  the provisions of cl.  (6)  do  not  apply). Therefore  even  if the Act contemplated acquisition  for  a company  which  may or may not be for a public  purpose,  it would  be  saved by Art. 31(5)(a) as an existing  law.  (See Lilavati  Bai v. State of Bombay (1)).  Further,  though  it may (1)  [1957] S.C.R. 721. 137 appear  on the words of the Act contained in Part 11,  which contains  the operative portions of the proceedings  leading up  to acquisition by the Collector that acquisition  for  a Company  may  or  may  not be  for  a  public  purpose,  the provisions  of Part VII make it clear that  the  appropriate Government  cannot permit  the bringing  into  operation the effective  machinery  of the Act unless it is  satisfied  as aforesaid,  namely,  that the purpose of acquisition  is  to enable  the  Company to erect dwelling  houses  for  workmen employed  by it or for the provision of  amenities  directly connected  with the Company or that the land is  needed  for construction of some work of public utility.  These require- ments indicate that the acquisition for a Company also is in substance  for  a public purpose inasmuch as  it  cannot  be seriously  contended that constructing dwelling houses,  and providing amenities for the benefit of the workmen  employed by it and construction of some work of public utility do not serve  a  public  purpose.   It is  not  necessary  for  the purposes  of  this  case to go  into  the  question  whether acquisition for a Company, even apart from the provisions of s.  40, will be for a public purpose, or  justifiable  under the  provisions of the Act, even on the assumption  that  it will  not serve a public purpose.  The facts of the  present case  have  not been investigated, as this Court  was  moved when  only  a notification under s. 4 of the  Act  had  been issued;  and the purpose of the acquisition in question  was still  at the enquiry stage.  By s. 38A, which was  inserted by the amending Act of 1933, it has been made clear that  an industrial concern not being a Company, ordinarily employing not  less than 100 workmen, may also take the  advantage  of land acquisition proceedings if the purpose of the  acquisi- tion  is the same as is contemplated by s. 40 in respect  of Companies.  It has been recognised by this Court in the case of  The State of Bombay v Bhanji Munji and Another (1)  that providing housing accommodation to the homeless is a  public purpose.  In an industrial concern employing a large  number of workmen away (1) [1955] 1 S.C.R. 777- 18 138 from their homes it is a social necessity that there  should be proper housing accommodation available for such  workmen. Where  a  large section of the community is  concerned,  its welfare  is  a matter of public concern.   Similarly,  if  a Company  is generous enough to erect a hospital or a  public reading room and library or an educational institution  open to the public, it cannot be doubted that the work is one  of public  utility and comes within the provisions of the  Act. We  are not in possession of all the relevant facts  in  the present  case as to the exact purpose for which the land  is sought  to be acquired.  That investigation was in  progress when the petitioner moved this Court.  Hence, the contention raised on behalf of the respondents that the application  is

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premature is not wholly devoid of merit. But  the  main  attack  on  the  constitutionality  of   the proceedings  in  question was based  upon  the  notification under s. 4, which is in these terms " Ex.  " A ". NOTIFICATION REVENUE DEPARTMENT. Sachivalaya, Bombay, 3rd April, 1959. LAND ACQUISITION ACT, 1894 (1 of 1894). District Thana. No. LTH. 15-59/42051-H-Whereas it appears to the  Government of  Bombay that the lands specified in the  schedule  hereto are  likely  to be needed for the purposes of  the  Company, viz., for factory buildings, etc., of M/s.  Mukund Iron  and Steel  Works Limited, Bombay.  It is hereby  notified  under the  provisions  of section 4 of the Land  Acquisition  Act, 1894  (I  of  1894), that the said lands are  likely  to  be needed for the purpose specified above. All  persons interested in the said lands are hereby  warned not  to  obstructor interfere with any  surveyors  or  other persons employed upon the said lands for the purpose of  the said  acquisition.   Any contracts for the disposal  of  the said lands by sale, lease, mortgage, assignment, exchange or otherwise,  or  any  outlay or  improvements  made  therein, without the sanction of the Collector after the date of this notification will, 139 under section 24 (seventhly) of the said Act, be disregarded by the officer assessing compensation for such parts of  the said lands as may be finally acquired. If the Government of Bombay is satisfied that the said lands are  needed for the aforesaid purpose, a final  notification to that effect under s. 6 of the said Act will be  published in  the  Bombay Government Gazette in due  course.   If  the acquisition is abandoned wholly or in part, the fact will be duly notified in the Bombay Government Gazette. Under  clause (c) of section 3 of the Land Acquisition  Act, 1894,  the  Government of Bombay is pleased to  appoint  the Special  Land  Acquisition Officer, Thana,  to  perform  the functions  of a Collector under section 5-A of the said  Act in respect of the said lands." It  is argued that in terms the notification does not  state that the land sought to be acquired was needed for a  public purpose.  In our opinion, it is not absolutely necessary  to the  validity of the land acquisition proceedings that  that statement  should find a place in the notification  actually issued.   The requirements of the law will be satisfied  if, in  substance,  it  is  found  on  investigation,  and   the appropriate  Government  is  satisfied as a  result  of  the investigation  that the land was needed for the purposes  of the  Company, which would amount to a public  purpose  under Part VII, as already indicated.  See in this connection  The State  of Bombay v. Bhanji Munji and Another (1).   In  that case  the question was whether the Bombay  Land  Requisition Act (Bombay Act XXXIII of 1948) was invalid inasmuch as  the purpose for the requisition was not in express terms  stated to  be a public purpose.  This Court laid it down  that  the statute  was not invalid for that reason provided that  from the  whole  tenor  and intendment of the  Act  it  could  be gathered  that  the  property was acquired  either  for  the purpose of the State or for any public purpose. It  is  further  argued that s. 4(1) of the  Act  had  deli- berately  omitted the words " for a Company "  and  insisted upon  a public purpose.  The absence from  the  notification under s. 4 aforesaid of those words,

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(1)  [1955] 1 S.C.R- 777. 140 namely, for a public purpose, are fatal to the  proceedings. The purpose if the notification under s. 4 is to carry on  a preliminary  investigation with a view to finding out  after necessary  survey and taking of levels, and,  if  necessary, digging  or  boring into the sub-soil whether the  land  was adapted  for  the  purpose for which it  was  sought  to  be acquired.  It is only under s. 6 that a firm declaration has to  be made by Government that land with proper  description and  area  so as to be identifiable is needed for  a  public purpose or for a Company.  What was a mere proposal under s. 4  becomes the subject matter of a definite  proceeding  for acquisition under the Act.  Hence, it is not correct to  say that  any defect in the notification under s. 4 is fatal  to the  validity  of  the proceedings,  particularly  when  the acquisition  is  for a Company and the purpose"" has  to  be investigated  under  s. 5A or s. 40  necessarily  after  the notification under s. 4 of the Act. The other attack under Art. 19(1)(f) of the Constitution  is equally  futile  in view of the decisions of this  Court  in State of Bombay v. Bhanji Munji and Another (1) and Lilavati Bai v. State of Bombay (2).  Nothing was said with reference to  the  provisions of Art. 14 of the  Constitution,  though that Article has been referred to in the grounds in  support of the writ petition. For the reasons given above, this petition must be dismissed with costs to the contesting parties.                                      Petition dismissed. (1) [1955] 1 S.C.R. 777. (2) [1957] S.C.R. 721. 141