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PETITIONER: BAJIRAO T.KOTE (DEAD ) BY LRS. & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT08/12/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1995 SCC  (2) 442        JT 1995 (1)    85  1994 SCALE  (5)138

ACT:

HEADNOTE:

JUDGMENT: K. RAMASWAMY, J. 1.  This appeal by special leave arises  from the  order  of the High Court  bombay dated june 13, 1979 in writ  petition no. 587 of 1979. The Govt. of Maharashtra  published in  the State  gazette the notification  issued  under s.4(1) of the Land  Acquisition  Act 1 of 1894 (for short, ’the  Act’)  on October  11,  1972, acquiring the  lands   including   House No.594/B  admeasuring  about  25" x  25"  for  public  trust "Saibaba  Sansthan  Shirdi",  the  validity  of  which   was challenged  by  the  appellants in the  writ  petition.  The Division Bench rejected their writ petitions in limini. Thus this appeal. 2.       It  is  contended  for  the  appellants  that   the specification of the "public purpose" in the notification is vague  and acquisition for Saibaba Sansthan is of no  public purpose.  For  the  first time before the  High  Court,  the respondents  had  disclosed   in  their  counter  affidavit, namely,  that the land was needed for joining  two  temples, i.e. Saibaba and Dwarka Mai Mandir. Even that also is of  no public  purpose,  since  those  two  temples  have  been  in existence  for well over years without any need for them  to be connected. There is no 87 specification  either in the notification or in the  counter affidavit  to  disclose  the purpose  .behind  the  proposed acquisition  denying  to the appellants  an  opportunity  to effectively  object to the acquisition. Right  of  objection statutorily given to the owner of the land under s.5A of the Act  should  not  be made illusory  by  vague  statement  of public. purpose. It is, therefore, a colourable exercise  of the power and also is vitiated on the ground of vagueness. 3.     It is also contended that by running the business  of selling flowers in the house proposed to be acquired to .the pilgrims  and  a small hotel is being run, they  would  also serve  public  purpose of catering service to  the  pilgrims

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denying  their  livelihood,  offend  their  right  to  life. Attempts  were  made  to  purchase  the  property  from  the appellants  by  negotiation which were turned  down  by  the Charity  Commissioner by his finding that the purchase  does not serve any public purpose. Therefore, the exercise of the power  by  the  State  under s.4  is  malafide  amenable  to judicial   review  under  Art.226  and  Art.  136   of   the Constitution.  It  is also further contended  that  for  the construction  of  a  huge Dharamshala, a  resting  room  and Prachar  Hall, the area under acquisition is too small.  The total  extent  is  only 60 sq. meter in all  and  no  useful purpose  will be served by acquiring such a small  piece  of land for a large project. The same contention are raised  in the other connected appeal. 4.     These contentions have been refuted by  Sri  Ganpule, the  learned  senior  counsel  for  the  second  respondent, Sansthan.  The questions, therefore, are whether the  public purpose specified is vague and liable to be quashed on  that ground  and whether notification published under  s.4(1)  of the  Act is vitiated by malafide or colourable  exercise  of the  power.   The notification mentions  thus:  "Whereas  it appears  to  the  Commissioner, Poona  Division  that  lands ’specified in the Schedule II hereto are likely to be needed for public purpose, viz., for public trust Saibaba Sansthan, Shirdi.  It is hereby notified under the provision ors.4  of the Land Acquisition Act, 1894 that the said land are likely to be needed for the purpose specified above". The question, therefore,  is  whether this notification is vague  and  the public purpose mentioned therein is liable to be quashed  on that  ground.  The leading judgment of this  Court  in  this behalf  is the ratio laid down in Smt. Somavanti &  Ors.  v. The  State  of Punjab & Ors., 1963 (2) SCR 774.   The  facts therein  were that the State of Punjab exercised  the  power under  s.4(1)  and issued the notification followed  by  the declaration under s.6 that the land was likely to be  needed by  the  government for a public purpose,  namely,  for  the "setting  up  of  a  factory"  (elaborated  later  on)   for manufacturing  various ranges of  refrigeration  compressors and  ancillary equipments. It was contended that the  public purpose  is a colourable exercise of the power and it is  no public  purpose  and that, therefore, the  exercise  of  the power  for  the  benefit  of the  company  is  a  colourable exercise  of  the statutory power offending their  right  to hold the property under Art. 19( 1 )(g) of the Constitution. The  Constitution  Bench  per  majority  dealing  with  that question  held  at  p.801 that the Act made  no  attempt  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 88 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 land for a public  purpose.  At p.804  it  was held that whether in a  particular  case  the purpose for which land is needed is a public purpose or  not is  for  the  State Govt. 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  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. If it appears that what the Government is satisfied about is

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not a public purpose but a private purpose or no purpose  at 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. Therefore,  the Constitution Bench upheld  the  notification when  it  was  mentioned that the  public  purpose  was  for industrial development without any specification. 5.      In  V.M.   Soneji & Anr. v.  State  of  Bombay  (Now Gujarat)  &  Ors., 1964 (3) SCR  686.  another  Constitution Bench  considered the question, when the notification  under s.4(1)   mentioned  public  purpose.  namely,   "for   State Transport Corporation". The contention thereto also was that it  was  vague and is a colourable exercise of  power.   The Constitution  Bench negatived the contention and  held  that there  is  a clear declaration of the  government  that  the purpose of acquisition was a public purpose even though  the land  was being acquired for a corporation and not  for  the State.  The acquisition must nevertheless be said to be  for public  purpose. In Ratilal Shakarabhai & Ors. v. State   of Gujarat  & Ors., 1970 (2) SCC 264, the facts were  that  the land  was acquired for public purpose, namely,  for  housing scheme undertaken by a Cooperative Society registered  under the  Cooperative Societies Act and sanctioned by  the  State Govt. for the employees of a company. It was contended  that the  public  purpose  was vague.  A bench  of  three  Judges considered  the question whether it was vague and liable  to be  quashed? In paragraph 8, it was held that there  was  no substance in the contention that the notification under  ss. 4  & 6 was vague. They are similar to notifications  usually issued under ss. 4 & 6. Therein it is clearly mentioned that the  proposed  acquisition was for  public  purpose.  Public purpose in question was also stated therein.  In Jage Ram  & Ors.  v. State of Haryana & Ors., 1971 (3) SCR 871, a  bench of  two  Judges was to consider whether the  public  purpose elaborated in the affidavit filed under the State Govt. that it  was needed to start new industry is vague and liable  to be  quashed.  It  was held that starting an  industry  is  a public purpose. It is essentially a question that has to  be decided by the government. There is no denying the fact that the  starting  of  new  industry  is  in  public   interest. Therefore it was held that the notification under s.4(1) and the declaration under s.6 were not vague. 6.     In Gopal Krishan Das v. Sailendra Nath Biswas & Anr., 1975   (1)  SCC  815,  the  facts  therein  were  that   the notification  under  s.4(1)  was published  for  the  public purpose  of "construction of dispensary building  and  other institutions connected with E.S.I. Scheme"  It was contended 89 that  it was colourable exercise of the power as  the  State Govt. did not apply its mind to matters in respect of  which it ought to have been satisfied before the declaration under s.6  of  the  Act was made. Considering the  effect  of  the notification  a  bench  of three Judges held  that  it  must appear  to  the  State  Govt. that the  land  sought  to  be acquired  is needed or is likely to be needed for  a  public purpose before notification under s.4(1) is published.   The notification under s.4(1) and the declaration under s.6 were held to be valid.  In Babu Singh v. Union of India, AIR 1979 SC  1713 at 1716, paragraph 7, a bench of two Judges was  to consider whether public purpose set out in the  notification under  s.4(1) and the declaration under s.6  were  different from each other and the declaration thereby becomes invalid. Considering that question it was held that the  notification under s.4(1) and the declaration under s.6 that the land Was

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needed  for  the extension of soil  conservation  and  other improvement  work  in  the catchment area  of  Sukhna  Lake, Chandigarh  and for raising a green belt around the  Capital was  held  to  be  public purpose  and  was  not  vague.  In Srinivasa  Coop.  House  Building  Society  Ltd.  v.   Madam Gurumurthy  ’Sastry & Ors., JT 1994 (4) SC 197, a  bench  of two judges, to which one of us K.Ramaswamy, J. was a member, considered  the question whether acquisition for  a  private cooperative society was a public purpose.  Considering  that question, this Court held that:               "Public  purpose  is not  capable  of  precise               definition. Each case has to be considered  in               the light of the purpose for which acquisition               is  sought  for.  It is to serve  the  general               interest  of the community as opposed  to  the               particular interest of the individual.  Public               purpose  broadly  speaking would  include  the               purpose  in which the general interest of  the               society as opposed to the particular  interest               of  the  individual is  directly  and  vitally               concerned.  Generally the executive  would  be               the best Judge to determine whether or not the               impugned  purpose is a public purpose. Yet  it               is   not  beyond  the  purview   of   judicial               scrutiny" 7.     In that case it was found that since the  acquisition was   for  a  private  coop.  house  building  society   not sanctioned  by  the  State  Govt.,  it  was  held  that  the acquisition  was  not  for public  purpose  and  that  coop. society  was  also not a company. In M.P. Housing  Board  v. Mohd.  Shaft  &  Ors.,  1992 (2) SCC  168  on  which  strong reliance  was placed by the counsel for the  appellant.  The facts were that the notification issued under s.4(1) did not specify  any public purpose.  The notification merely  reads that the land detailed in the schedule attached thereto  was required  for  a public purpose.  The  notification  further disclosed that the State Govt. was being of the opinion that the provision of sub-s.(1) of s.17 was applicable in respect of  the land required to be acquired, it dispensed with  the enquiry under s.5-A of the Act. The schedule of the land was given.   In that context a bench of three Judges  considered the  controversy  and had held that the  latter  elaboration that the land was acquired for the planned development under the  M.P.  Housing Construction Board was  vague  and  that, therefore,  it  was not a public  purpose.  Accordingly  the notification  was  quashed.  It  is  seen  that  this  Court consistently has taken the view that if the purpose has been mentioned  in the notification as a public purpose,  whether it "specified" the public purpose or not, the court did  not go  behind the public purpose nor seek specification in  the notification published under s.4(1). When declaration un- 90 der  sub-s.(1) ors.6 was published, the public  purpose  was held  to  be conclusive by operation of  sub-s.3  ors.6.  If there is any vagueness and if it is specified in the counter affidavit  or  is  evident  from the  record,  it  was  also accepted by this court amplifying the public purpose in  the notification.  If it is not a public purpose, i.e. to  serve general interest but individual interest, it was held to  be a  colourable exercise of power.  In M.P. Housing Board  ’s, case  as  no mention was made of any public purpose  in  the notification    issued   under   s.4(1),   the    subsequent clarification  was not accepted by this Court.   This  Court did  not lay down any law contrary to or  inconsistent  with the  law laid down by the two Constitution  Bench  Judgments

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and  successive three Judge Benches and two  Judge  Benches. Therefore,  the  ratio  therein must be  understood  in  the backdrop of the facts and renders little assistance to the appellants. 8.    The contention that it is also a malafide exercise  of power has no legs to stand.  In Abdul Husein Tayabali & Ors. v.  State  of Gujarat & Ors., 1968 (1) SCR 797, a  bench  of three  Judges  of this Court considered  whether  the  State Govt. has exercised the power mala fide without applying its mind  to  the facts’ of the case. Considering the  facts  of that  case and the allegations made in the petition and  the counter  affidavit filed by the State Govt.  explaining  the circumstances in which the notification under s.4(1) and the declaration under s.6(3) came to be published, i.t was  held that  it is not a mala fide exercise of the power.   Enquiry under  s.5A was conducted and a report submitted  thereunder was  considered  and then the declaration under  s.6(1)  was published.  It  is seen that in this case  even  before  the enquiry  under s.5A was conducted and the  report  submitted and  the  declaration  under  s.6(1)  could  be  made,   the appellants  had approached the High Court and sought to have the notification published under s.4(1) quashed. 9.     It is seen that the public trust Saibaba  Sansthan  - Shirdi, needs the land for the  public purpose, namely,  two temples are needed to be connected by a road though the land occupied  by  the house sought to be acquired.  It  is  true that  Saibaba  Temple  at Shirdi is run by  a  public  trust maintaining  Saibaba Temple at Shirdi and other temples  and Dharamshala  prayer Hall. Thousands of pilgrims daily  visit Saibaba  Temple  at  Shiridi to pay their  homage  and  seek blessings  of the mystic’ secular saint Sri  Saibaba.   Each religion claims that he belongs to their faith but the great saint never proclaimed himself to be of a particular  faith. Therefore,  all sections of the people in India  have  great unflinching  faith, devotion and absolute belief in him  and every  day thousands of pilgrims throng Shirdi to pay  their homage and seek his blessings. Though physically he was  not present, the devotees believe that he is still surviving. 10.    The land of India is known for such great saints  and yogies  hailing from different faiths.  One good example  is of two brothers, by name,  EIder and Younger, bala-yogies in Mummidivaram  village  in  East  Godavari  of  Dist.  Andhra Pradesh, the EIder one started his penance at the age of  16 and the younger one at the age of 7 years respectively. They stopped  taking any food and water and locked themselves  in two separately built asharms from outside and the keys  were kept in the custody of the District Magistrate. According 91 to  the  wishes of the yogi, on Mahasivaratri  day,  in  the midnight  at  the stroke of 12.00 without a  watch,  hissing sound would be heard and the doors were to be opened and the EIder  yogi  would give darshan  to  the   devotees   on   a speciallyeracted platform at a distance of 500 sq. yards and after  10 minutes the door from outside would be closed  and he would get himself seated on the platform after 10 minutes and  thereafter  the  closed platform would  be  opened  and throughout  the day he would give darshan.  The  EIder  yogi used  to  give darshan and retired back into Ashram  on  the next  day midnight.  Both brothers closed their eyes.  There were  neither windows to get air nor ventilators to  exhaust air  from inside.  Keeping the ashram closed throughout  the year without air, not only makes the life impossible to live but also bad Odour would emit contrarily when the doors were opened,  perfume  smell come out from the  rooms.  They  did their  ceaseless  penance for well over 40 years.  It  is  a

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miracle  that they surpassed human physiology and they  know the latest technological development. EIder yogi started his penance even when electricity was not known in the villages. He   knows  the  mechanism  of  electrical  operations   and explained  new  developments in the country by  his  signals since he observed only silence.  It is highly impossible  to walk  when they always keep themselves seated with  crossed- legs. But within a short period of 5 to 10 minutes, he  used to  reach the platform.  It is also impossible to  know  how they  know the latest technological developments  when  they closed  the  eyes and lock themselves in the  Ashram.  These revelation  are  inexplicable  and how  they  survive  doing penance  for more than 40 years without taking any food  and water and without excretions and bath When  the  doors  were opened, it would be  seen  that  they appear  as  if they just had bath and had  wet  clothes  but nothing could be found. The entire room gives perfume smell. It  is difficult to explain these miracles where  from  such perfume smell comes and not a particle of dust was found  in the rooms. India has produced several such great saints  and yogies but these are only illustrative. 11.    Be  that  as  it may,  it  cannot  be  gainsaid  that providing access to the temples is not a public purpose. The exercise of the power under s.4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this  court in Tata Cellular v. Union of India, 1994 (3) Scale, 477,  by a  bench of three Judges, considering the scope of  judicial review  of  the administrative action (grant of  licence  by tenders)  held that the administrative actions of the  State or  its instrumentalities are amenable to  judicial  review. As mentioned earlier when the State Govt. have exercised the power  under  s.4(1)  for a public purpose  and  the  public purpose  was  mentioned therein, the exercise of  the  power cannot be invalidated on grounds of malafides or  colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists  at  the  time of exercise of  the  power.   It  is primarily  for the State Government to decide whether  there exists  public purpose or not, and it is not for this  Court or the High Courts to evaluate the evidence and come to  its own conclusion whether or not there is public purpose unless it  comes  to  the  conclusion that  it  is  a  malafide  or colourable  exercise  of  the  power.  In  other  words  the exercise of the power serve no public purpose or it serves a private purpose. 92 12.    It  is true that an attempt was made  on  an  earlier occasion to purchase the property by negotiation but it  was turned  down by the Charity Commissioner and he  refused  to grant  permission.  Consequently, the trust was  constrained to  approach the government requesting to acquire the  land. The government did consider the circumstances and  exercised that  power.   The Act does give the power to  negotiate  by private sale or even during pending acquisition  proceedings negotiations  by private sale could be made in  which  event the  need to determine the market value under the Act  would be  obviated  and the compensation would  be  determined  in terms of the agreement reached between the Land  Acquisition Officer  and  the  owner of the land  or  person  having  an interest  in the land, subject to the prior approval of  the Govt.  Therefore,  the  failure  to  purchase  the  land  by negotiation  and  the  exercise of the  power  under  s.4(1) thereafter,  by no stretch of imagination, be considered  to be  a  mala  fide  or  colourable  exercise  of  the  power. Therefore, we do not find any infirmity or illegality in the

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notification published under s.4(1) warranting interference. Accordingly, the appeal is dismissed but without costs. 98