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CASE NO.: Appeal (civil)  6756 of 2003

PETITIONER: Daulat Singh Surana & Others

RESPONDENT: First Land Acquisition Collector & Others

DATE OF JUDGMENT: 13/11/2006

BENCH: ASHOK BHAN & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

Dalveer Bhandari,J.  

       This appeal is directed against the judgment of the  Division Bench of the Calcutta High Court delivered in  FMAT No.6 of 1997 dated 10th October, 2002.

       The appellant is aggrieved by the Notification under  Section 4 and declaration under Section 6 of the Land  Acquisition Act, 1894 dated 13th December, 1994 and  23rd June, 1995 respectively published and made by the  Government of West Bengal in respect of premises no.4,  Pretoria Street, Calcutta measuring more or less 0.0988  hectare (0.2441 acre).   

The appellant had challenged the said notification  by filing a writ petition before the Calcutta High Court.   The learned Single Judge had allowed the writ petition  and quashed the notification.  The said notification under  section 4 reads as under:  

"NOTIFICATION Calcutta No.4364-LA(PW)/3P-21/94/Home (Police) Dated, Calcutta the 13th December, 1994 WHEREAS it appears to the Governor that land is  likely to be needed for a public purpose not being a  purpose of Union namely for permanent  accommodation of office-cum-residence of Dy.  Commissioner of Police Security Control under  Commissioner of Police, Calcutta, Home (Police)  Deptt. Government of West Bengal in Police Station  District Calcutta Ward No.63 of Calcutta Municipal  Corporation, it is hereby notified that a piece of land  comprising Western portion of premises No.4,  Pretoria Street, Calcutta and measuring more or  less 0.0988 hectare (0.2423 acre) and bounded as  specified below:-

North by                :       Pretoria Street

East by         :       Remaining portion of Premises                                  No.4, Pretoria Street.

South by                :       Premises No.5, Pretoria Street

West by         :       Premises Nos.12 & 15, Lord                                  Sinha Road

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is likely to be needed for the aforesaid public  purpose at the public expense within the aforesaid  Ward of the Calcutta Municipal Corporation in the  City of Calcutta.

This Notification is made, under the provisions of  Section 4 of Act I of 1894 to all whom it may  concern.

A plan of the land may be inspected in the Office of  the First Land Acquisition Officer, Calcutta, at No.5,  Bankshall Street, Calcutta \026 700 001.

In exercise of the powers conferred by the aforesaid  Section, the Governor is pleased to authorise the  Officers for the time being engaged in the  undertaking, with their servants and workmen, to  enter upon and survey the land and do all other  acts required or permitted by that section.

Any person interested in the above land, who has  any objection to acquisition thereof, may within  thirty days after the date on which public notice of  the substance of this Notification is given in the  locality, file an objection in writing before the First  Land Acquisition Collector, Calcutta, at No.5,  Bankshall Street, Calcutta-700 001.

By Order of the Governor T.N. Khan Deputy Secretary to the Govt. of West Bengal."

Thereafter, on 23.6.1995, declaration under section  6 was issued by the Government of West Bengal. The  said declaration as published in Calcutta Gazette reads  as under: "DECLARATION Calcutta No.4059-L.A./3P-21/94/Home (Police)  Dated: 23.6.95 WHEREAS the Governor is satisfied that land  is needed for a public purpose being/not being a  purpose of Union, namely for permanent  accommodation of office-cum-residence of Dy.  Commissioner of Police Security Control under  Commissioner of Police Calcutta, Home (Police)  Deptt. Govt. of N. Bengal, in Police Station Park  Street, District Calcutta, Ward No.63 of Calcutta  Municipal Corporation, it is hereby declared that a  piece of land comprising premises No. Western  portion of Premises No.4, Pretoria Street, Calcutta  and measuring more or less 0.0988 hectare (0.2441  acre) and bounded on the

North by                :       Pretoria Street

East by         :       Remaining portion of Premises                                 No.4, Pretoria South by                :       Premises No.5, Pretoria Street West by         :       Premises No.12 & 15, Lord                         Sinha Road is needed for the aforesaid public purpose at the  public expense partly at the public expenses and  partly at the expense of within the aforesaid ward of

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the Calcutta Municipal Corporation in the City of  Calcutta.

This Declaration is made under the provision  of Section 6 of Act 1 of 1894/read with the said  Notification, to all whom it may concern.

A plan of the land may be inspected in the  Office of the First Land Acquisition Collector,  Calcutta, at No.5, Bankshall Street, Calcutta-700  001.

By order of the Governor, (P.K. Guha Roy) Deputy Secretary to the Govt. of W.B. I.C.A. 2744(2)/95 Date: 28.6.95."

In the said declaration, it is clearly incorporated  that the said piece of land is needed for office-cum- residence of Dy. Commissioner of Police (Security  Control) at the public expense.  

The reasons for setting aside section 4 notification  and declaration under section 6 of the Land Acquisition  Act, were as follows:  

(I)     the publication thereof, having not been  preceded by handing over vacant  possession of the land, by the  Government to the respondents, in  compliance with the order dated 18th  August, 1993, passed by the learned  Single Judge in Writ Petition No.3799 of  1992, had amounted to practicing fraud  by the Government upon the statute;

(II)    the declaration under Section 6 was set  aside on the ground that the statement  incorporated in the said declaration that  the said premises was being acquired  ’partly at the public expense and partly at  the expense of within the aforesaid ward’   as published in the newspaper indicated  total non-application of mind by the  concerned authorities".

In the year 1943, under the Defence of India Rules,  the premises situated at 4, Pretoria Street, Calcutta was  requisitioned by the Government of West Bengal.  After  requisition, the Government started using the ground  floor of the two-storeyed building, standing thereon, as  office of the Dy. Commissioner of Police (Security  Control), and the first floor thereof, as residential  accommodation of the said officer.  Admittedly, the  premises and the land appurtenant to the premises has  been continuously in possession of the respondent-State  Government since 1943 and from year 1943, the said  premises is being used as the office of the Dy.  Commissioner of Police (Security Control).  In other  words, for the last more than 63 years the office of Dy.  Commissioner of Police (Security Control) has been  continuously functioning from the said premises.  

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In this petition, we are primarily concerned with the  validity of the issuance of notification under section 4  and declaration under section 6 of the Land Acquisition  Act, 1894 in respect of the said premises.   

In the impugned judgment and other judgments  delivered from time to time, the other facts regarding  requisition and acquisition have been incorporated.   Therefore, briefly, we would indicate those facts in order  to understand the controversy involved in the said case  properly and comprehensively.  We would like to clearly  indicate that our directions would remain confined only  to the validity of Section 4 and declaration made under  Section 6 of the Act.  Essential facts   Brief facts necessary to understand and  comprehend the controversy involved in the case are  briefly stated as under.

After the acquisition of the said premises in the year  1943, both office and residence of the Dy. Commissioner  of Police (Security Control) started functioning at the said  premises.  On 28th December, 1947, the Government of  West Bengal de-requisitioned the said land, but detained  possession thereof.  Again, by order dated 30th January,  1959 issued under Section 3(1) of the West Bengal  Premises Requisition and Control (Temporary Provision)  Act, 1947, the Government requisitioned the said land  and continued to use the same for the same purpose.

The appellant purchased the said land on 27.9.1982  along with the existing building. The appellant filed a writ  petition being W.P. No.872 of 1984 before the Calcutta  High Court in the year 1984. The writ petition was allowed by the learned Single  Judge vide judgment dated 17th September, 1985.  The  respondent-State preferred an appeal (FMA No.508 of  1985).  The said appeal was disposed of by the judgment  of the Division Bench dated 12th December, 1985.  The  requisition thereof was to remain valid for a period of six  months from 12th December, 1985 and the requisition in  regard to the garden was put to an end with the direction  to hand over the possession to the appellant with liberty  to acquire at the same time.

The appellant apprehending acquisition of the said  land under the provisions of the West Bengal Land  (Requisition and Acquisition) Act, 1948, on 25th April,  1986 moved the second Writ Petition (Civil Rule No.  5025(W) of 1986).

The respondent-Government once again  requisitioned the said land by making an order dated 31st  May, 1986 under Section 3(1) of the West Bengal Act 2 of  1948.  The respondent-Government of West Bengal  continued to use the said requisitioned land for the same  purpose as before.  Thereafter, for acquiring the said  land, the government published a notice dated 14th  August, 1986 under Section 4(1a) of the West Bengal Act  2 of 1948 in the official gazette on 16th August, 1986.

The appellant challenged the said order and notice  under Sections 3(1) and 4(1a) of the West Bengal Act 2 of

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1948 by filing a third Writ Petition (Civil Rule No.  8407(W) of 1987).  The learned Single Judge disposed of  the said Civil Rule 8407(W) of 1987.  Both the said order  under Section 3 (1) and Notice under Section 4(1a) were  set aside.   

The respondent-Government preferred an appeal  (FMAT No. 2224 of 1987) and it was disposed of by the  Division Bench on 7th September, 1990.  The appeal was  allowed and the judgment appealed from was set aside to  the extent indicated hereinbelow.  The relevant portion of  the judgment is reproduced hereinbelow :- "It however appears to us that if the  vacant land to the extent of 15 feet at the back  side of the covered portion of the building is  acquired the purpose for which the building is  intended to be acquired will be satisfied and  the entirety of the vacant land and the back  side of the said building is not necessary to be  acquired.  The order of acquisition of vacant  land at the back of the building beyond 15 ft.  of the vacant land at the back side of the  building therefore stands annulled.  It also  appears to us that in the facts of this case that  the State Government intended from the very  beginning to acquire the premises for the said  Security Control Department and for  accommodating the in charge of the said  department viz. The Deputy Commissioner of  Police (Security Control).  It was never  intended by the State Government to  requisition the premises temporarily for the  sole purpose of requisition.  It will not be  correct to contend that the Government had  intended initially to keep the premises in  requisition but later on, it decided to acquire  the said premises.  Records of the Government  Department also clearly demonstrate that the  property was intended to be acquired for the  said purpose and as the time for acquisition as  specified by the Court of Appeal was running  out and there was urgent necessity to  maintain status quo as regards possession  before acquisition proceeding is finalized under  Act II of 1948, the order of requisition was  made within six months only as a step in aid  to pass consequential order of acquisition  under Section 4(1a) of Act 1948. Looking to the  relevant records of the case it does not appear  to us that the order of requisition was not  passed within a period of six months but such  order was antedated."

                Against the order of the Division Bench, special  leave petition filed by the respondent-State was  dismissed by this Court.  Consequently, on 12th June,  1991 physical possession of the land beyond 15 ft. of the  existing building was delivered back by the respondent- State to the appellant.  A notice dated 14th September,  1992 under Section 5(3) of the West Bengal Act 2 of 1948  was issued by the First Land Acquisition Collector,  Calcutta inviting the respondents to make their  respective claims to compensation for the said land  already acquired by the Government by publishing the

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said notice dated 14th August, 1986 under Section 4(1a)  of the West Bengal Act 2 of 1948.          It may be pertinent to mention that the appellant  instead of making any claim for the grant of  compensation, filed Writ Petition Nos.3798-3799 of 1992.   In Writ Petition No.3798 of 1992, the notice dated 14th  September, 1992 under Section 5(3) of the West Bengal  Act 2 of 1948 and in FMAT No.2224 of 1987 was set  aside on the ground that despite the judgment of the  Division Bench in FMAT No.2224 of 1987, the said notice  had been issued.

By the order passed in Writ Petition No.3799 of  1992, the requisition order dated 30th January, 1959 was  set aside together with the direction to the State  Government to deliver the vacant possession of the land  and the building to the appellant within six months.  By  a subsequent order dated 8th July, 1994 passed in Writ  Petition No.3798 of 1992, the learned Single Judge was  pleased to modify his order dated 18th August, 1993 to  the effect that the said order would not prevent the  Government from issuing fresh notice in terms of the  orders of the Court, for acquisition of the land within the  period of six months after they wanted to acquire the  land.          In this background, the respondent-State  Government published the notification dated 13th  December, 1994 in the official gazette on 21st December,  1994 under Section 4 of the Land Acquisition Act of  1894.  In the notification, the same public purpose was  indicated that the premises were required for the office of  Deputy Commissioner of Police (Security Control) which  had been in possession of respondent State of West  Bengal since 1943.  The land (the purpose for which it  was being used from the year 1943) and the land (the  covered area 15 ft. as upheld by the Division Bench in  FMAT No.2224 of 1987) at the same premises was  needed by the State Government at the public expense.

The appellant had filed his objections under Section  5A of the Act.  The objections of the appellant were heard  by the competent authority and thereafter, declaration  under Section 6 of the Act was issued by the competent  authority on 23rd June, 1995.  It was published in the  newspaper on 6 and 7th July, 1995 and in the official  gazette on 7th August, 1995.  According to the appellant,   the notification under Section 4 of the Land Acquisition  Act could not have been validly issued in respect of the  land, possession whereof had been retained illegally by  the State Government.  It was further incorporated that  the Government had earlier been continuing possession  of the land only in terms of the requisition order dated  31st May, 1986.  The said order of requisition having been  quashed by the Court’s order dated 18th August, 1993,  the Government’s possession of land sought to be  acquired became illegal and unauthorized.  It was  asserted by the appellant that having abandoned the  earlier proceedings initiated under the West Bengal Act 2  of 1948, as was evident from the fact of publication of the  impugned Notification under Section 4 read with Section  4 of the Act No.1 of 1894, the State Government had lost  the right to retain the possession of the land.  The  possession would have been taken only in terms of the

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provisions of Section 16 of the Act 1 of 1894.  It was  further asserted by the appellant that the very fact of  Government publishing the Notification under Section 4,  while illegally retaining possession of the land was  sufficient to hold that the power was exercised mala fide.   The learned Single Judge came to the conclusion that  possession of the land could be taken by the Government  only after passing of an award under the provisions of the  Act 1 of 1894.   

In the instant case, no award has been passed, the  possession of the land had always remained with the  Government.  The possession of the land had not been  handed over to the respondent in spite of Court’s order  dated 18th August, 1993 passed by the learned Single  Judge.  According to the appellant, non-delivery of  possession of the land had vitiated the Notification under  Section 4 of the Land Acquisition Act so as to make it a  nullity.  The Government was granted liberty to acquire  the land in accordance with law but that liberty was  subject to handing over the derequisitioned land to the  respondent.

The appellant submitted that the publication of the  Notification under Section 4 of the Act 1 of 1894 without  first delivering back possession of the land to the  respondent in terms of the court’s order passed in Writ  Petition No.3799 of 1992 amounted to practicing fraud by  the government upon the statute.          It was contended by the respondent before the  Division Bench that since the Government had been  granted liberty to take steps for acquisition of the land  and the Notification under Section 4 of the Act 1 of 1894  was issued pursuant to grant of such liberty, there was  no scope and reason for the State Government to give  back possession of the land to the appellant; as a  condition precedent for initiation of proceedings.  As  regards the declaration, it has been contended that the  learned Single Judge should not have decided the  question of validity by relying on a printing mistake  appearing in the declaration which had been published  in the newspaper because the purported vagueness  indicated by the learned Single Judge did not exist and a  real one as was apparent from the Notification itself and  the declaration published in the official gazette.   

Both the notification under section 4 and  declaration under section 6 have been reproduced in the  earlier part of the judgment.  The respondent placed  reliance on Sri Nripati Ghoshal v. Premavati Kapur &  Ors. [(1996) 5 SCC 386 (para 4)] and First Land  Acquisition Collector & Ors. v. Nirodhi Prakash  Gangoli & Anr. [(2002) 4 SCC 160 (para 6)] and  contended that the State Government had power to  initiate an acquisition proceeding by publishing a  Notification under Section 4 of the Act and in respect of  any land which is in the Government’s possession and,  therefore, Notification published in the instant case  cannot be faulted with, on the ground as contended by  the appellant.          The learned counsel for the appellant also  contended that delivery of possession of the land in the  facts and circumstances of the present case was a sine

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qua non for publishing the Notification under Section 4 of  the Land Acquisition Act.

On the question of requirement of delivery of  possession reliance has been made on Raghunath &  Ors. v. State of Maharashtra & Ors. [AIR 1988 SC  1615 (para 9)] Hindustan Oil Mills Ltd. & Anr. v.  Special Deputy Collector (Land Acquisition) [AIR 1990  SC 731 (paras 8 & 9)] and State of West Bengal v.  Bireshwas Dutta Estate (P) Ltd. [(2000) 1 Calcutta Law  Times 165(HC) (para 37)].          Reliance has also been placed on Sailendra  Narayana Bhanja Deo v. State of Orissa [AIR 1956 SC  346 (para 8). Analysis of the impugned judgment

The Division Bench carefully examined the  pleadings, documents and the judgments cited at the  Bar.  The Court came to a categorical finding that for the  purpose of examining the validity of a Notification under  Section 4 of the Land Acquisition Act, the question of  possession of land is absolutely irrelevant; the  examination should remain confined only to the question  of existence of public purpose.  The Division Bench drew  support for the aforesaid view from the case of Nirodhi  Prakash Gangoli.  The Division Bench also observed  that neither the appellant had seriously contended that  behind the proposed acquisition, the public purpose was  absolutely absent; nor did the learned Single Judge  arrived at the conclusion that the proposed acquisition  was not for a notified public purpose.

The Government of West Bengal was empowered to  take steps for acquisition of any land in any locality, if  the same was needed for public purpose under section 4  of the Land Acquisition Act.  According to the Division  Bench, in absence of any bar, the Government was fully  empowered to publish a notification under Section 4 in  respect of a piece of land which is already in the  government’s possession.  The Division Bench observed  that the order dated 18th August, 1993 passed by the  learned Single Judge was in ignorance of both the  aforementioned statutory provisions and the binding  Division Bench judgment.   

In Nirodhi Prakash Gangoli’s case (supra),  exactly similar controversy came before the Court for  adjudication regarding physical possession.  The Court  held as under: "6. It is indeed difficult for us to uphold the  conclusion of the Division Bench that  acquisition is mala fide on the mere fact that  physical possession had not been delivered  pursuant to the earlier directions of a learned  Single Judge of Calcutta High Court dated  25.8.1994. When the Court is called upon to  examine the question as to whether the  acquisition is mala fide or not, what is  necessary to be inquired into and found out is,  whether the purpose for which the acquisition  is going to be made, is a real purpose or a  camouflage. By no stretch of imagination,  exercise of power for acquisition can be held to  be mala fide, so long as the purpose of

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acquisition continues and as has already been  stated, there existed emergency to acquire the  premises in question. The premises which were  under occupation of the students of the  National Medical College, Calcutta, were  obviously badly needed for the College and the  appropriate authority having failed in their  attempt earlier twice, the orders having been  quashed by the High Court, had taken the  third attempt of issuing notification under  Sections 4(1) and 17(4) of the Act, such  acquisition cannot be held to be mala fide and,  therefore, the conclusion of the Division Bench  in the impugned judgment that the acquisition  is mala fide, must be set aside and we  accordingly set aside the same."

The High Court was correct and justified in holding  that while examining the validity of notification under  Section 4 of the Land Acquisition Act, the question of  possession of land was absolutely irrelevant.

The Division Bench held that the order dated 18th  August, 1993 was per incurium.  The Court also observed  that the learned Single Judge was wrong in holding that  the publication of the said Notification under Section 4  was an act done in violation of the said order dated 18th  August, 1993.  According to the Division Bench, the  learned Single Judge proceeded on a completely wrong  premise that the land in question had been kept in  possession by the Government, even after formally  derequisitioning the same; for, as a matter of fact, the  piece sought to be acquired, had never been  derequisitioned after 30th January, 1959; it had rather  stood absolutely vested in the Government.  The Division  Bench clearly came to the conclusion that the State  Government’s possession of the land never became illegal  or unauthorized by the operation of law.   

The Division Bench specifically observed that the  declaration published on 7th August, 1995 in the official  gazette has been produced before them.  The Division  Bench observed that they were satisfied that the words  ’partly at the public expense and partly at the expense of’  within the aforesaid ward published in the newspaper did  not correctly reproduce the declaration issued under  section 6 of the Act.  The official gazette had correctly  incorporated that the land was acquired at the public  expense only.  Therefore, the Division Bench did not find  any infirmity in Section 4 notification and in the  declaration dated 23rd June, 1995 made under Section 6  of the Land Acquisition Act, 1894.   

The Division Bench was also justified in coming to  the conclusion that the appellant cannot be permitted to  take advantage of some typographical error in the  newspaper particularly when in the official gazette as well  as Notification under Section 4 and in the declaration of  23rd June, 1995 made under Section 6 of the Act of 1894,  no such mistake appeared.  Therefore, the submission of  the appellant was totally devoid of any merit.

It may be pertinent to mention that the Division  Bench was quite careful about the rights of the appellant  and various proceedings and orders passed in those

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proceedings.  While taking into consideration all the  relevant facts and circumstances, the Division Bench  clearly observed as under and we deem it appropriate to  quote the relevant observation of the Division Bench:- "We have already seen that there was an  unbroken and continuous valid requisition,  which had ultimately merged in the acquisition  notice dated 14th August, 1986.  Therefore, to  whatever rent compensation or damages the  respondents were entitled in law; they were  always and still are, at liberty to claim and  realize the same from the Government, in  accordance with law.  Regarding the propriety  and necessity of the publication of the  notification dated 13th December, 1994, under  section 4 of the Act 1 of 1894, in the face of the  Division Bench decision dated 7th September,  1990 in F.M.A.T. No. 2224 of 1987, we do not  propose to express any opinion, lest we should  allow the appellants to challenge their own  action, to the inevitable detriment of valuable  accrued right, if any, of the respondents.  We  only say that in view of our decision to allow  the appeal, and uphold the section 4  notification and consequent section 6  declaration, we do not think it proper or  necessary to pass any further order on the  respondents’ said applications (C.A. Nos. 4592  and 5886 of 2001); and they shall be deemed  to be disposed of, with liberty to the  respondents to claim their dues, if any, before  the appropriate forum, in accordance with  law."  

The Division Bench allowed the appeal and set aside  the impugned judgment of the learned Single Judge  dated 2nd December, 1996.  The Division Bench has  observed that the appellant would be entitled to recover  rent, compensation of rent to which he was entitled in  law in appropriate proceedings.  The appellant has failed  to point out any infirmity as far as Notification under  Section 4 and consequent declaration under Section 6 of  the Act.  Section 4 of the Notification is usually assailed  on the ground of public purpose.  Therefore, we deem it  appropriate to enumerate the concept of Public Purpose  and deal with the decided cases interpreting the scope  and ambit of public purpose. Public Purpose

Public Purpose has been defined in the Land  Acquisition Act as under:- "(f) the expression "public purpose"  includes \026

(i)     the provision of village-sites, or the  extension, planned development or  improvement of existing village sites;

(ii)    the provision of land for town or  rural planning;

(iii)   the provision of land for planned  development of land from public  funds in pursuance of any scheme  or policy of Government and

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subsequent disposal thereof in  whole or in part in lease,  assignment or outright sale worth  the object of securing further  development as planned;

(iv)    the provision of land for a  corporation owned or controlled by  the State;

(v)     the provision of land for residential  purposes to the poor or landless or  to persons residing in areas affected  by natural calamities, or to persons  displaced to affected by reason of  the implementation of any scheme  undertaken by Government, any  local authority or a corporation  owned or controlled by the State;

(vi)    the provision of land for carrying out  any educational, housing, health or  slum clearance scheme sponsored  by Government, or by any authority  established by Government for  carrying out any such scheme, or,  with the prior approval of the  appropriate Government, by a local  authority or a society registered  under the Societies Registration Act,  1860 (21 of 1860), or under any  corresponding law for the time being  in force in a State, or a co-operative  society within the meaning of any  law relating to co-operative societies  for the time being in force in any  State;

(vii)   the provision of land for any other  scheme of development sponsored  by Government or, with the prior  approval of the appropriate  Government, by a local authority;

(viii)  the provision of any premises or  building for locating a public office;

but does not include acquisition of land for  Companies."

Public purpose will include a purpose in which the  general interest of community as opposed to the interest  of an individual is directly or indirectly involved.  Individual interest must give way to public interest as far  as public purpose in respect of acquisition of land is  concerned.

In the Constitution of India, some guidelines can be  traced as far as public purpose is concerned in Article 37  of the Constitution.  The provisions contained in this Part  (Directive Principles of the State Policy) shall not be  enforceable by any Court, but the principles therein laid  down are nevertheless fundamental in the governance of

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the country.  It shall be the duty of the State to apply  these principles in making laws.

According to Article 39 of the Constitution, the State  shall, in particular, direct its policy towards securing that  the ownership and control of the material resources of  the community are so distributed as best to subserve the  common good.  The laws made for the purpose of  securing the constitutional intention and spirits have to  be for public purpose.

The term ’public purpose’ has been defined in  Black Law Dictionary (Fifth Edition) as under:  "A public purpose or public business has for  its objective the promotion of the public  health, safety, morals, general welfare,  security, prosperity and contentment of all the  inhabitants or residents within a given political  division, as, for example, a state, the sovereign  powers of which are exercised to promote such  public purpose or public business."  

Public purpose is bound to vary with times and  prevailing conditions in the community or locality and,  therefore, the legislature has left it to the State  (Government) to decide what is public purpose and also  to declare the need of a given land for the purpose.  The  legislature has left the discretion to the Government  regarding public purpose.  The Government has the sole  and absolute discretion in the matter.

       In State of Bihar v. Kameshwar Singh reported in  AIR 1952 SC 252 at page 259, a Constitution Bench of  this Court considered the expression ’public purpose’.   Mahajan, J. explained the expression ’public purpose’ in  the following manner: "The expression "public purpose" is not  capable of a precise definition and has not a  rigid meaning.  It can only be defined by a  process of judicial inclusion and exclusion.  In  other words, the definition of the expression is  elastic and takes its colour from the statute in  which it occurs, the concept varying with the  time and state of society and its needs.   The  point to be determined in each case is whether  the acquisition is in the general interest of the  community as distinguished from the private  interest of an individual."

In that case, S. R. Das, J. observed as under: "We must regard as public purpose all  that will be calculated to promote the welfare  of the people as envisaged in the Directive  Principles of State policy whatever else that  expression may mean."

Almost a century ago, in Hamabai v. Secretary of  State reported in (1911) 13 Bom LR 1097, 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 purpose’ 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

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general interest of the community, as opposed to the  particular interest of individuals, is directly and vitally  concerned" received the approval of the Privy Council".

       The definition of public purpose has been relied in  number of subsequent decisions including the  Constitution Bench judgment of this Court.

The concept of public purpose was dealt in great  detail in a leading American case Munn v. Illinois  reported in (1877) 94 US 113: 24 L. Ed 77 and in some  other cases.  The doctrine declared is that property  becomes clothed with a public interest when used in a  manner to make it of public consequence, and affect the  community at large and from such clothing the right of  the legislature is deduced to control the use of the  property and to determine the compensation which the  owner may receive for it. Field, J. observed as follows: "The declaration of the Constitution of 1870,  that private buildings used for private  purposes shall be deemed public institutions,  does not make them so.  The receipt and  storage of grain in a building erected by private  means for that purpose does not constitute the  building a public warehouse. There is no magic  in the language, though used in a  constitutional convention, which can change a  private business into a public one, or alter the  character of the building in which the business  is transacted."

In United Community Services v. Omaha Nat.  Bank 77 N.W.2d 576, 585, 162 Neb. 786, the Court  observed that a public purpose has for its objective the  promotion of the public health, safety, morals, security,  prosperity, contentment, and the general welfare of all  the inhabitants.

       In People ex rel. Adamowski v. Chicago R.R.  Terminal Authority, 151 N.E.2d 311, 314, 14  III.2d  230 the Court observed that public purpose is not static  concept, but is flexible, and is capable of expansion to  meet conditions of complex society that were not within  contemplation of framers of Constitution.

In Green v. Frazier, 176 N.W. 11, 17, 44  N.D. 395,  the Court observed that a public purpose or public  business has for its objective the promotion of the public  health, safety, morals, general welfare, security,  prosperity, and contentment of all the inhabitants or  residents within a given political division, as, for  example, a state, the sovereign powers of which are  exercised to promote such public purpose or public  business. In the words of Lord Atkinson in Central Control  Board v. Cannon Brewery Co. Ltd. (1919) A.C. 744, the  power to take compulsorily raises by implication a right  to payment.          The power of compulsory acquisition is described by  the term "eminent domain". This term seems to have  been originated in 1525 by Hugo Grotius, who wrote of  this power in his work "De Jure Belli et Pacis" as follows :  "The property of subjects is under the eminent  domain of the State, so that the State or he

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who acts for it may use and even alienate and  destroy such property, not only in the case of  extreme necessity, in which even private  persons have a right over the property of  others, but for ends of public utility, to which  ends those who founded civil society must be  supposed to have intended that private ends  should give way. But it is to be added that  when this is done the State is bound to make  good the loss to those who lose their property."

The Court observed that the requirement of public  purpose is implicit in compulsory acquisition of property  by the State or, what is called, the exercise of its power of  ’Eminent Domain’. The Court further observed that the principle of  compulsory acquisition of property, says Cooley (in Vol. II  at p. 113, Constitutional Limitations) is founded on the  superior claims of the whole community over an  individual citizen but is applicable only in those cases  where private property is wanted that public use, or  demanded by the public welfare and that no instance is  known in which it has been taken for the mere purpose  of raising a revenue by sale or otherwise and the exercise  of such a power is utterly destructive of individual right.

In The State of Bombay v. R.S. Nanji (1956) SCR  18, the Court observed that it is impossible to precisely  define the expression ’public purpose’. In each case all  the facts and circumstances will require to be closely  examined in order to determine whether a public purpose  has been established. Prima facie, the Government is the  best judge as to whether public purpose is served by  issuing a requisition order, but it is not the sole judge.   The courts have the jurisdiction and it is their duty to  determine the matter whenever a question is raised  whether a requisition order is or is not for a public  purpose.   In the said case, the Court observed that the phrase  ’public purpose’ includes a purpose, that is, an object or  aim, in which the general interest of the community, as  opposed to the particular interest of individuals is  directly and vitally concerned.  It is impossible to define  precisely the expression ’public purpose’.  In each case  all the facts and circumstances will require to be closely  examined to determine whether a public purpose has  been established. In that case, the Court also referred to the following  cases: The State of Bombay v. Bhanji Munji &  Another (1955) 1 SCR 777 and The State of Bombay v.  Ali Gulshan (1955) 2 SCR 867.

       In Somawanti v. State of Punjab (1963) 2 SCR  774, the Court observed that public purpose must  include  an object in which the general interest of the  community, as opposed  to the particular interest of  individuals, is directly and vitally concerned. Public  purpose is bound to change with the times and the  prevailing conditions in a given area and, therefore, it  would not be a practical proposition even to attempt an  extensive 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  land for a public purpose.

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The Constitution Bench of this Court in  Somawanti (supra) observed that whether in a  particular case the purpose for which land was needed  was a public purpose or not was for the 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  declarations would be open to challenge at the instance  of the aggrieved party. In Babu Barkya Thakur v. The State of Bombay  & Others (1961) 1 SCR 128, the Court observed as  under: "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 Constitution Bench in Satya Narain Singh v.  District Engineer, P.W.D., Ballia and Anr. reported in  AIR 1962 SC 1161 while describing public service  observed :- "It is undoubtedly not easy to define what is  "public service" and each activity has to be  considered by itself for deciding whether it is  carried on as a public service or not. Certain  activities will undoubtedly be regarded as  public services, as for instance, those  undertaken in the exercise of the sovereign  power of the State or of governmental  functions. About these there can be no doubt.  Similarly a pure business undertaking though  run by the Government cannot be classified as  public service. But where a particular activity  concerns a public utility a question may arise  whether it falls in the first or the second  category. The mere fact that that activity may  be useful to the public would not necessarily  render it public service. An activity however  beneficial to the people and however useful  cannot, in our opinion, be reasonably regarded  as public service if it is of a type which may be  carried on by private individuals and is carried  on by government with a distinct profit motive.  It may be that plying stage carriage buses even  though for hire is an activity undertaken by  the Government for ensuring the people a  cheap, regular and reliable mode of transport  and is in that sense beneficial to the public".  

In Arnold Rodricks v. State of Maharashtra,  reported in (1966) 3 SCR 885, while Justice Wanchoo  and Justice Shah dissenting from judgment observed  that there can be no doubt that the phrase ’public  purpose’ has not a static connotation, which is fixed for  all times. There can also be no doubt that it is not  possible to lay down a definition of what public purpose  is, particularly as the concept of public purpose may  change from time to time. There is no doubt however that  public purpose involves in it an element of general  interest of the community and whatever furthers the  general interest must be regarded as a public purpose.  In Bhim Singhji v. Union of India (1981) 1 SCC  166, as per Sen, J., the concept of public purpose  necessarily implies that it should be a law for the

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acquisition or requisition of property in the interest of the  general public, and the purpose of such a law directly  and vitally subserve public interest.   

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 the individuals is directly and virtually  concerned.

In Laxman Rao Bapurao Jadhav v. State of  Maharashtra reported in (1997) 3 SCC 493, this Court  observed that "it is for the State Government to decide  whether the land is needed or is likely to be needed for a  public purpose and whether it is suitable or adaptable for  the purpose for which the acquisition was sought to be  made.  The mere fact that the authorized officer was  empowered to inspect and find out whether the land  would be adaptable for the public purpose, it is needed or  is likely to be needed, does not take away the power of  the Government to take a decision ultimately".

In Scindia Employees’ Union v. State of  Maharashtra & Others reported in (1996) 10 SCC 150,  this Court observed as under:

"The very object of compulsory  acquisition is in exercise of the power of  eminent domain by the State against the  wishes or willingness of the owner or person  interested in the land.  Therefore, so long as  the public purpose subsists the exercise of the  power of eminent domain cannot be  questioned.  Publication of declaration under  Section 6 is conclusive evidence of public  purpose.  In view of the finding that it is a  question of expansion of dockyard for defence  purpose, it is a public purpose."

       The right of eminent domain is the right of the State  to reassert either temporarily or permanently its  dominion over any piece of land on account of public  exigency and for public good.         In the case of Coffee Board v. Commissioner of  Commercial Taxes reported in (1988) 3 SCC 263, the  Court observed that the eminent domain is an essential  attribute of sovereignty of every State and authorities are  universal in support of the definition of eminent domain  as the power of the sovereign to take property for public  use without the owner’s consent upon making just  compensation.   

       The power of eminent domain is not exercisable in  Anglo-Saxon jurisprudence except on condition of  payment of compensation.  In V.G. Ramachandran’s Law  of Land Acquisition and Compensation (Eighth  Edition) by G.C. Mathur, it is stated (at page 1)- "In United States, the power of eminent  domain is founded both on the Federal (Fifth  Amendment) and on the State Constitutions.   The scope of the doctrine in America stands  considerably circumscribed by the State  Constitutions.  Now, the Constitution limits  the power to taking for a public purpose and  prohibits the exercise of power of eminent

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domain without just compensation.  The  process of exercising the power of eminent  domain now is commonly referred to as  ’condemnation’ or ’expropriation’."         A seven-Judge Bench of this Court in The State of  Karnataka & Another v. Shri Ranganatha Reddy &  Another reported in (1977) 4 SCC 471, explained the  expression ’public purpose’ in the following words: "6.     It is indisputable and beyond the pale of  any controversy now as held by this Court in  several decisions including the decision in the  case of His Holiness Kesavananda Bharati  Sripadagalaveru v. State of Kerala [1973]  Supp. 1 S.C.R. 1 - popularly known as  Fundamental Rights case - that any law  providing for acquisition of property must be  for a public purpose. Whether the law of  acquisition is for public purpose or not is a  justifiable issue. But the decision in that  regard is not to be given by any detailed  inquiry or investigation of facts. The intention  of the legislature has to be gathered mainly  from the Statement of Objects and Reasons of  the Act and its Preamble. The matter has to be  examined with reference to the various  provisions of the Act, its context and set up,  the purpose of acquisition has to be culled out  therefrom and then it has to be judged  whether the acquisition is for a public purpose  within the meaning of Article 31(2) and the law  providing for such acquisition.  61.     When we ascertain the content of ’public  purpose’, we have to bear the above factors in  mind which mean that acquisition of road  transport undertakings by the State will  undoubtedly be a public purpose. Indeed, even  in England, ’public purposes’ have been  defined to mean such ’purposes’ of the  administration of the government of the  country (p. 228, Words & Phrases Legally  defined, II Edn.). Theoretically, or even  otherwise, there is no warrant for linking up  public purpose with State necessity, or in the  court throwing off the State’s declaration of  public purposes to make an economic research  on its own. It is indeed significant that in  Section 40 (b) of the Land Acquisition Act,  1894, the concept of ’public use’ took in  acquisition for the construction of some work  even for the benefit of a company, provided  such work as likely to prove useful to the  public. Even the American Constitution, in the  5th Amendment, uses the expression ’public  use’ and it has been held in India in  Kameshwar that ’public purpose’ is wider than  ’public use’."

Ambiguity, indefiniteness and vagueness of public  purpose are usually the grounds on which notifications  under Section 4(1) of the Land Acquisition Act are  assailed.

Public purpose cannot and should not be precisely  defined and its scope and ambit be limited as far as

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acquisition of land for the public purpose is concerned.   Public purpose is not static.  It also changes with the  passage of time, need and requirements of the  community.  Broadly speaking, public purpose means  the general interest of the community as opposed to the  interest of an individual.

The power of compulsory acquisition as described  by the term ’eminent domain’ can be exercised only in the  interest and for the welfare of the people.  The concept of  public purpose should include the matters, such as,  safety, security, health, welfare and prosperity of the  community or public at large.

The concept of ’eminent domain’ is an essential  attribute of every State.  This concept is based on the  fundamental principle that the interest and claim of the  whole community is always superior to the interest of an  individual.

Public purpose for which the premises was required  in the instant case was not questioned seriously.  As a  matter of fact, the State of West Bengal has been using  the premises in question for more than six decades for  the safety and security of the people by having an office  of the Deputy Commissioner of Police (Security Control).   Therefore, by no stretch of imagination, it can be said  that the premises was not required by the State  Government for the interest and welfare of the people or  there was no public purpose involved in acquiring the  premises in question.  

We have heard the learned counsel for the appellant  and the respondent at length.  We have also carefully  examined the pleadings, documents, impugned  judgments and other judgments cited at the Bar.  We see  no reason to interfere with the well-reasoned judgment  passed by the Division Bench of the Calcutta High Court,  particularly, when the Division Bench had given liberty to  the appellant to recover rent, compensation or damages  in appropriate proceedings in accordance with law.   The appeal being devoid of any merit is accordingly  dismissed.

In the facts and circumstances of the case, we direct  the parties to bear their own costs.