Smt. Somavanti & Ors Vs. The State of Punjab & Ors [1962] INSC 182 (2 May 1962)
1962 Latest Caselaw 182 SC

Smt. Somavanti & Ors V. The State Of Punjab & Ors [1962] INSC 182 (2 May 1962)

02/05/1962 MUDHOLKAR, J.R.

MUDHOLKAR, J.R.

AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.

AYYANGAR, N. RAJAGOPALA

CITATION: 1963 AIR 151 1963 SCR (3) 774

CITATOR INFO:

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

ACT:

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

HEADNOTE:

In February, 1961, the petitioners purchased over six acres of land situate in the State of Punjab for a sum of Rs.

4,50,000 and claim, to have done so for the purpose of establishing a paper mill. The sixth respondent, private' limited company, which had a licence from the Government of India for starting a factory for the manufacture of various 775 ranges of refrigeration compressors and ancillary equipment, requested the State of Punjab for the allotment of an appropriate site for the location of the factory. In the official Gazette of August 25, 1961. was published 'a notification of the Governor of Punjab dated 'August 18, 1961, under s. 4 of the Land Acquisition Act, 1894, to the effect that the land belonging to the petitioners was likely to be needed by the Government at public expenses for a public purpose, namely, for setting up a factory for manufacturing various ranges of refrigeration compressors and ancillary equipment. The Government directed that action under s. 17 of the Act shall be taken because there was urgency and that the provisions of s. 5A shall not apply to the acquisition. In the same Gazette another notification under s. 6 of the Act dated August 19, 1961, was published to the effect that the Governor of Punjab was satisfied that the land was required by the Government at public expense for the said purpose, The notification provide for the immediate taking of possession of the land under the provisions of s. 17 (2) (c) of the Act. On September 29, 1961, the Government of Punjab sanctioned an expense of Rs. 100 for the purpose of acquisition of the land. The petitioners filed an application under Art. 32 of the Constitution of India challenging the legality of the action taken, by the Government on the grounds, inter alia, (1) that the acquisition was not for a public purpose either under s. 4 or s. 6 of the Land Acquisition Act; (2) that the land was in reality being acquired for the benefit of the sixth respondent and that the action of the Government amounted to discrimination against the petitioners and violated Art. 14 of the Constitution of India; (3) that the alleged contribution of Rs. 100 made by the Government was a colourable exercise of power inasmuch as the amount was so unsubstantial sum compared to the value of the property that it could not raise an inference of Government participation in the proposed activity; and (4) that the notifications under ss. 4 and 6 could not have been made simultaneously and were, therefore, without efficacy.

Held (per Sinha, C. J., Rajagopala Ayyangar, Mudholkar and Venkatarama Aiyar, jj.), (1) that the declaration made by the Government in the notification under s. 6 (1) of the Land Acquisition Act, 1894, that the land was required for a public purpose, was made conclusive by sub-s. 3 of s. 6 and that it was not open to a court to go behind it and try to satisfy itself whether in fact the acquisition was for a public purpose.

Whether in a particular case the purpose for which land was needed was a public purpose or not was for the 776 Government to be satisfied about and the declaration of the Government would be final subject to one exception, namely that where there was a colourable exercise of the power the declaration would be open to challenge at the instance of the aggrieved party.

Hamabai Framjee Petit v. Secretary of State for India, (1914) L. R. 42 I. A. 44 and R. L. Arora v. The State of Uttar Pradesh, (1962) Supp. 2 S. C. R. 149 distinguished.

Vedlapatla Suryanarayana v. The Province of Madras, I. L. R. (1946) Mad. 153, approved.

(2) that there wag no difference between the effect of the expression "conclusive evidence" in s. 6 (3) of the Act from that of "conclusive proof", the aim of both being-to give finality to the establishment of the existence of a fact from the proof of another.

(3) that the conclusiveness in s, 6 (3) must necessarily attached not merely to a "need" but also to the question whether the purpose was a public purpose. There could be no "need" in the abstract.

(4) that the provisions of the Act which provided that the declaration made by the State that a particular land was needed for a public purpose, shall be conclusive evidence of the fact that it was needed, did not infring the Constitution.

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga & Ors., [1952] S. C. R. 889, Babu Barkya Thakur v. State of Bombay & Ors., [1961] 1 S. C. R. 128, and State of Bombay v. Bhanji Munji & Anr., [1955] 1 S. C. R. 777, relied on.

(5) that it was for the State to say which particular industry might be regarded as beneficial to the public and to decide that its establishment would serve a public purpose; therefore, no question of discrimination would arise merely from the fact that the Government had declared that the establishment of a particular industry was a public purpose. Accordingly, the notifications in question, did not contravene Art. 14 of the Constitution.

(6) that as s. 5A was out of the way the publication in the game issue of the Gazette of the both the notifications that is the one dated August 18, 1961, and that dated August 19, 1961, was not irregular.

Held, further (Subba Rao, J., dissenting), that the notification dated August 19, 1961, under s. 6 of the Land Acquisition Act, 1894, was not invalid on the ground that the 777 amount contributed by the State towards the cost of the acquisition was only nominal compared to the value of the land.

The expression "party out of public revenues" in the proviso to s. 6 (1) of the Act did not necessarily mean that State's contribution must be substantial; but whether a token contribution by the State towards the cost of acquisition would be sufficient compliance with the law would depend upon the facts of each case and it was open to the court in every case which came before it to ascertain whether the action of the State was a colourable exercise of power.

Sanja Naicken v. Secretary of State, (1926) I. L. R. 50 Mad.

308 and Vadlapatla Suryanaryana v. The, Province of Madras, 1. L. R. [1946] Mad. 153, approved.

Ponnaia v. Secretary of State, A. 1. R. 1926 Mad. 1099, disapproved.

Chatterton v. Cave, (1878) 3 App. Cas. 483 and Maharajah Luchmeswar Singh v. Chairman of the Durbhanga Municipality, (1890) L. R. 17 I. A. 90 held inapplicable.

Per Subba Rao, J.-in interpreting the proviso to s. 6 (1) of the Act a reasonable meaning should be given to the expression "wholly or partly." The payment of a part of a compensation must have some rational relation to the compensation payable in respect of the acquisition for a public purpose. So construed "part can only mean substantial part of the estimated compensation. What was substantial part of a compensation depended upon the facts of each case. In the instant case, it was impossible to say that a sum of Rs. 100 out of an estimated compensation which might go even beyond Rs. 4,00,000 was in any sense of the term a substantial part of the said compensation. The Government had clearly broken the condition and, therefore, it had no jurisdiction to issue the declaration under s. 6 of the Act.

ORIGINAL JURISDICTION : Petitions Nos. 246 to 248 of 1961.

Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.

G. S. Pathak, Rameshwar Nath, S. C. Andley and P. L. Vohra, for the petitioners (in petition No. 246 of 1 96 1), 778 Rameshwar Nath, S. N. Andley and P. L. Vohra for the petitioners (in petitions Nos. 247 and 2 48 of 196 1).

S. M. Sikri, Advocate-General J. for the State Of Punjab, N. S. Bindra and P. D. Menon, for respondent No. 1 (in all the petitions).

S. P. Varma, for respondent No. 6 (in all the petitions).

H. N. Sanyal, Additional Solicitor-General of India, R. H. Dhebar and P. D. Menon, for the State of Gujarat (Intervener) (in all the petitions).

1962. May 2. The following judgments were delivered. The judgment of Sinha, C. J., Rajagopala Ayyangar, Madholkar and Venkatarama Aiyar, J J., was delivered by Mudholker, J.

MUDHOLKAR, J.-The petitioners who have acquired over six acres of land by purchase for Rs. 4,50,009 in February, 1961, under five sale deeds and one lease deed claim to have done so for the purpose of establishing a paper mill in collaboration with Messrs. R. S. Madhoram and Sons who had been granted a licence for the establishment of a paper plant in Ghaziabad in Uttar Pradesh. The aforesaid land is situate in the village Meola Maharajpur, Tehsil Ballabhgarh, District Gurgaon, and abuts on the Mathura Road, and is only about 10 or 12 miles from New Delhi. Respondent No. 6, Air Conditioning Corporation (P) Ltd., is a private limited concern and holds a licence from the Government of India for starting a factory for the manufacture of various ranges of refrigeration compressors and ancillary equipment. We may mention here that initially this project was allotted to the State of West Bengal but at the request of State of Punjab its location was shifted to the State of Punjab.

779 Respondent No. 6 requested the State of Punjab for the allotment of an appropriate site for the location of the factory. The petitioners contend that respondent No. 6 being interested in acquiring land in the village Meola Maharajpur approached the State of Punjab in or about the month of March, 1961, for the purpose of acquiring land for their factory under the Land Acquisition Act, 1894 (hereinafter referred to as the Act). One of the petitioners having learnt of this made an application on March 23, 1961, to the Deputy Commissioner, Gurgaon, requesting him that none of the lands purchased by the petitioners should be acquired for the benefit, of respondent No. 6. Owners of adjacent lands Mr. Om Prakash, Mr, Ram Raghbir, Mr. Atmaram Chaddha and Mr. Hari Kishen who are petitioners in W. P. 247 and 248 of 1961 which were heard along with. this petition made similar requests. The petitioners allege that they were assured by the Deputy Commissioner that their lands would not be acquired for the benefit of respondent No. 6. Thereafter respondent No. 6 purchased by private treaty a, plot of land measuring approximately 70,000 sq. yards contiguous to, the land owned by the petitioners on or about April 21, 1961.

The, petitioners grievance is that notwithstanding the assurances given to them by the Deputy Commissioner, Gurgaon, the Governor of Punjab, by notification dated August 25, 1961, under s. 4 of the Act declared that the lands of the petitioners in this petition as well as those of the petitioners in the other two writ petitions were likely to be needed by Government at public , expense for a public purpose, namely, for setting up a factory for manufacturing various ranges of refrigeration compressors.,and, ancillary equipment. It accordingly notified that the, land in: the locality described 780 in the notification was required for the aforesaid purpose.

Similarly it authorised the Sub-Divisional Officer and Land Acquisition Officer, Palwal, to enter upon and survey the land in the locality and to do all other acts required or permitted by s.4 of the Act. It further directed that action under s. 17 of the Act shall be taken because there was urgency and also directed that the provisions of s 5A shall not apply to the acquisition. On August 19, the Governor of Punjab made a notification under s. 6 of the Act to the effect that he was satisfied that the land specified in the notification was required by Government at public expense for public purpose, namely, for setting up a factory for the manufacture of refrigeration compressors and other ancillary equipment and declared that the aforesaid land was required for the aforesaid purposes. This declaration was made "to all whom it may concern" and the Sub-Divisional Officer, Palwal, was directed to take all steps for the acquisition of this land. Finally the notification provided for the immediate taking of possession of the land under the provisions of s. 17 (2) (c) of the Act. Both these notifications were published in the Punjab Government Gazette of August 25, 1961.

The petitioners contend that these notifications and the land acquisition proceedings permitted to be taken under them violate their fundamental rights under Art. 19 (1) (f) and (g) to possess the said land and carry on their occupation, trade or business and that, therefore, they must be quashed.

It is their contention that they have purchased this land bona fide for industrial purposes as land in the vicinity of this land is being acquired by industrialists for establishing various industries. The purpose is said to be the establishment of a paper manufacturing plant. According to them 781 they have entered into an arrangement with Messrs. R. S. Madho Ram & Sons who hold industrial licence No. L/2-1/2 (1)/N-60/62. The proposed industry, according to them, would employ about 200 people. The industry they wish to start is a new one so far as they are concerned, whereas according to them, the respondent No. 6 is already engaged in refrigeration industry and as far as they know, it has established a factory for manufacturing refrigeration equipment at Hyderabad in the State of Andhra Pradesh.

It may be mentioned that some time after the notification was published, that is, on September 29, 1961, the Government of Punjab sanctioned the expense of Rs. 100 for the purpose of acquisition of this land. According to the petitioners this was an after-thought and besides, a token contribution of this kind is not sufficient to show that the acquisition is being made partly at public expense.

The petition was opposed not only by respondent No. 6 but also by the State of Punjab which is respondent No. 1 to the petition. The respondent No. 1 denied that the petitioners had purchased the land for a bona fide industrial purpose and would in fact use it for such purpose. It also denied that any assurance was give to the petitioners that their lands would not be acquired. It admitted that the respondent No. 6 had made an application in December, 1960 for acquiring land for setting up its factory and that, therefore, the Punjab Government agreed to do the needful.

According to respondent No. 1 the acquisition proceedings have been undertaken for a public purpose and at public expense as stated in the notification and that the State Government would make part contribution towards the, payment of compensation of the land' out of public revenues. In the circumstances it in 782 contended that the petitioners would not be entitled to any relief whatsoever. They would of course get compensation for the land as determined by the Land Acquisition Officer.

The action of the State Government is said to be legal and in accordance with the provisions of the law because what was done was permissible under ss.4 and 6 of the Act, that it was done bona fide, that part of the compensation would be paid out of the, public revenues, that the declaration made by the Government is conclusive evidence under sub-s. (3) of s.6, that the land is needed for ,a public purpose, that the notifications were made on different dates though they were published in the same issue of the Gazette and are perfectly valid, that the land is not being acquired for a company but for a public purpose, that, therefore, the provisions of Part VII of the Act are inapplicable and that the lands are lying vacant and their owners will be paid compensation. No question of depriving them of their fundamental rights under Art. 19(1)(f) and (g) or of violation of their right under Art. 14 therefore arises.

According to respondent No. 1 it would be open to the petitioners to make their claim for compensation to the Land Acquisition Officer for such loss as the acquisition would entail on them. It also stated that as the land purchased by the respondent No. 6 through private negotiation has no access to the main road' and as the land is inadequate to meet the minimum essential requirements the acquisition of the, lands in question became necessary.

On behalf of the respondent No. 6 it is stated that the need for a factory like the one in its con. temptation is acutely felt in India inasmuch a manufacture of compressors and the composes nets of big and small air-conditioners, refrigerators, 783 water coolers and cold storage cabinets is not being carried out anywhere in the country so far. The import of these goods naturally drains away a considerable amount of foreign exchange. It was, therefore, felt that by starting manufacture of these articles in our country not only Will foreign exchange be saved, but some foreign exchange will eventually be earned by the export of manufactured goods.

They further contend that the purpose for which the factory is being set up must be regarded as a public purpose because inter alia it is intended by manufacturing the aforesaid goods, to cater to the needs of the public at large. It is in view of these circumstances that the Government of India, accepting the recommendation made in this regard by the licensing committee under the Industries Development and Regulation Act, 1951, issued a licence in its favour on April 8, 1951. It then pointed out that it has secured the collaboration in this project of a well-known American Company named Borg-Warner International Corporation of Chicago, which is the biggest manufacturers of air conditioning plants and equipment in the world, and that the collaboration agreement has been approved by the Government of India in the Ministry of Commerce. Its grievance is that this agreement has not been implemented so far because it has not been able to get the land for constructing the building in which the necessary machinery and ,implements' could be installed. Finally it says that originally the licence was issued for setting up a factory in the State of West Bengal and that it was at the instance of the Government of Punjab that the Central Government permitted the location of the factory to be shifted from West Bengal to Punjab. According to it once the factory gets going it is likely to employ at least 1,000 workers.

It is not necessary to refer to the other affidavits and the rejoinder affidavits except to some 784 portions of the additional affidavit filed by Mr. M. B. Bhagat, Under Secretary on behalf of the respondent No. 1.

We are referring only to those portions which were relied on during the arguments before us. In that affidavit it is denied that any licence had been granted to Messrs. R. S. Madho Ram & Sons for the establishment of a paper plant in the Punjab. According to respondent No. 1 Messrs. R. S. Madho Ram & Sons were granted a licence on August 17, 1960, for the establishment of an industrial undertaking in Ghaziabad (U.P.) for the manufacture of writing and printing paper and pulp. It further stated that even this licence has been cancelled by the Government of India by their letter dated January 31, 1962. Since the said licensee did not take any effective steps to establish the same. It then stated that the Air Conditioning Corporation which was incorporated as a private limited company has since, with the permission of the Central Government, been converted into a public limited company with the name and style of "York India Ltd.", and that the company has been granted a licence to manufacture refrigeration equipment by the Industrial Licensing Committee. There is an agreement between York India Ltd., and Messrs. York Corporation, U.S.A. a subsidiary of Borg Warner of the U.S.A. where under the latter have undertaken to give all technical assistance and technical training to the Indian personnel as also to contribute 50% of the initial investment in the undertaking.

The respondent No. 6 expects to manufacture 70% of the equipment in the very first year and cent. per cent, by the end of 1966. It further stated that the foreign collaborators also have agreed to sell the products of the firm outside India at prices and on terms and conditions most favourable to the Indian firm, thereby enabling it to obtain access to the foreign market. The foreign collaborator would make available to the Indian 785 personnel the technical ,know-how' and other information necessary for the manufacture of refrigeration materials and that such assistance will itself be very valuable. It denied that the respondent No. 6 has established a factory similar to the one now intended to be established in Hyderabad as alleged by the petitioners. It is admitted that licences have been granted to two other concerns in India for the manufacture of similar equipment. Neither of those licensees has actually started production, at any rate, so far, and, therefore, it is not correct to say that similar equipment is already being manufactured in India.

Then it stated "the products that are to be manufactured by the respondent till now were being imported into India from foreign countries and goods worth about Rs. 3,83,70,000 in 1960 and for the first ten months in 1961 Rs. 3,56,50,000 were imported by the various licensees holding import licences." It also stated that the respondent No. 6 was granted licence to establish a factory in West Bengal but since no one had been granted a licence to establish a factory of this kind in the Punjab its licence was transferred to Punjab. The proposed factory would employ a large number of persons and thus help to solve to some extent the exisiting problem of unemployment in Punjab. Finally it stated that the establishment of the factory as such is in furtherance of the industrial development of the Punjab State and is, therefore, for a public purpose.

On behalf of the petitioners Mr. Pathak has raised the following five contentions :

(1) The acquisition is not for a public purpose either within s.4 or s.6 of the Land Acquisition Act or for a purpose useful to the public as contemplated in s.41 and that the action of the Government amounted to 786 acquiring property from one person and giving it to another.

(2) The alleged contribution of Rs. 100 made by the Government is a colourable exercise of power, that no such intention was mentioned prior to the notification and that the amount of Rs. 100 is so unsubstantial a gum compared to the value of the property that it cannot raise an inference of Government participation in the proposed activity.

(3) That the property is in fact being acquired for a company and, therefore, the provisions of Part VII of the Act should have been complied with. Non-compliance with those provisions vitiates the acquisition.

(4) The petitioners.' proposed paper mill would be as good an industrial concern as the one intended to be established by respondent No. 6 and the Government, in preferring the latter to the former, has violated the guarantee of equal protection of law provided by Art. 14 of the Constitution.

(5) That the notification under ss. 4 and 6 could not have been made simultaneously and are, therefore, without efficacy, We may deal with the third point raised by Mr. Pathak first, that is, regarding non-compliance of provisions of Part VII.

It is common ground that those provisions were not complied with. The reason for that is, that according to the respondents the acquisition is not for a company but for a public purpose, partly at public expense. Indeed, the respondents at no stage have relied on the provisions of Part VII of the Act and therefore, the main question to be considered is whether the acquisition is for a public purpose 787 partly at public expense or not. If it is so, then, of course, the petitions must succeed. Therefore, it is the first two contentions raised by Mr. Pathak which primarily need our consideration.

According to learned counsel for the petitioners the statements made in the affidavits on behalf of the; State as; well as, on behalf of the respondent No. 6 make it perfectly clear that the land is being acquired for the respondents No. 6. Reliance, is placed particularly upon that portion of the affidavit of the State, where it is stated that the land is acquired for enabling the respondent No. 6, to have access to the main road and for meeting their minimum requirements for establishing their factory, It is further stated that the compensation for all the land which is being acquired is to come out of the pockets not of the, State Government but the respondent No. 6 itself. No doubt, the Government has said that it has sanctioned the payment of Rs. 100 towards the payment of compensation but that is only an insignificant fraction of the total amount of compensation that would be payable in, respect of these Ian(Is, the petitioners the a themselves-having paid Rs. 4,50,000 to the persons from whom they acquired these lands.

On behalf of the respondents the learned Advocate-General for Punjab contended that the declaration of the Government in the notification that the land is required for a public purpose is made conclusive by sub-s. 3 of s. 6 of the Act and, therefore, it is not open to this Court to go behind it and try to satisfy itself whether in fact the acquisition is for a public, purpose or not. Alternatively he contended that the land is being acquired for a public purpose because the object of the acquisition is to establish a new industry 788 and do away with imports of refrigeration equipment and to enable technical education to be imparted to Indian personnel in a new field. He further said that the acquisition will not only save foreign exchange by lessening imports but will enable foreign exchange to be earned from the export of goods manufactured in the proposed factory.

The new industry is said to be of great economic importance inasmuch as it will enable the preservation of food which will otherwise be destroyed. Refrigeration equipment also contributes towards the maintenance of health because it enables storage of medicines such as antibiotics which are liable to be decomposed at normal temperatures prevailing in our country. The industry proposed to be started will open a new avenue of employment and diminish unemployment and generally advance the industrial development of the country.

Finally he said that a part of the land is required for building houses and quarters for the workers of the factory and to give amenities to them. All these purposes are, therefore, said to be public purposes. Reliance was placed by him on Vol. 19 of Encyclopedia Britannica, pp. 49 to 57 for showing the manifold applications of refrigeration in various industries and activities. Reference was also made to Vol. 18 of Encyclopedia Britannica, p. 745 wherein facilities for providing refrigeration have been grouped under the heading Public utility'. Reference was also made to be next page where it is stated "Every public utility must be in possession of natural resources upon which that industry is based. Their sites must have strategic locations. Limitation in the choice of this agent of production tends to make the cost of acquiring or leasing these facilities greater than it would be if the industry had a wider range of choice. Furthermore, utilities must make allowances in advance for probable increase in the required capacity. For these reasons utilities are provided 780 with the governmental power of eminent domain which makes possible the `compulsory sale of private property." Relying upon the affidavit of Mr. Bhagat, to which we have referred earlier, the learned Advocate-General of Punjab said that the object of the Government in acquiring these lands is to enable a new industry to be established not only for saving foreign exchange and earning foreign exchange bat also for securing the industrial advancement of the country, enabling the citizens to obtain technical education in a new field, relieving to some extent the Pressure of unemployment and so on. For all these reasons he contends that the acquisition must be deemed to be for a public purpose even though the bulk of the compensation for the acquisition will come from the pockets of respondent No. 6.

In our opinion the question whether any of the aforesaid purposes falls within the expression public purpose would arise for consideration only if the declaration of the Government is not conclusive or if the action of the Government is colourable. If, as contended by the learned Advocate General, sub-s. 3 of s. 6 concludes the matter-and the validity of this provision is not challenged and the action of the Government is not colourable the other question would not arise for consideration.

It is strenuously contended on behalf of the petitioners that sub-s. 3 of s. 6 does not debar this Court from considering whether a purposed acquisition is for a public purpose or not. It is said, in the first place, that this provision only makes the declaration "conclusive evidence" and not "conclusive proof" and then contended that the declaration is conclusive evidence only of a need and nothing more.

A distinction is sought to be made between "Conclusive proof" and "conclusive evidence" and 790 it is contended that where a law declares that a fact shall be conclusive proof of another, the Court is precluded from considering other evidence once such fact is established.

Therefore, where the law makes a fact conclusive proof of another the fact stands proved and the Court must proceed on that basis. But, the argument proceeds, where the law does not go that far and makes a fact only "conclusive evidence" as to the existence of another fact, other evidence as to be existence of the other fact is not shut out. In support of the argument reliance is placed on s. 4 of the Indian Evidence Act which in its third paragraph defines 'conclusive proof' as follows :

"When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it".

This paragraph thus provides that further evidence is barred where,, under the Indian Evidence Act, one fact is regarded as proof of another. But it says nothing about what other laws may provide. There are a number of laws which make certain fact& conclusive evidence of other facts: (see Companies Act, 1956, s. 132 ; the Indian Succession Act, 1925, s. 381 ; Christian Marriages Act, 1872, s. 61 ; Madras Revenue Act, 1869, s. 38 ; Oaths Act, 1873, s. (11). The question is whether such provision also bars other evidence after that which is conclusive evidence is produced.

The object of adducing evidence is to prove a fact. The Indian Evidence Act, deals with the, question as to what kind of evidence is permissible to be adduced for that, purpose and states in s. 3 when a fact is said to be proved.

That section reads thus 791 'Evidence' means and includes(1) all statements which the court permits or requires to be made before it by witnesses, in, relation to matters of fact under, inquiry ; such statements are called oral evidence ;

(2) all documents produced for the inspection of the court ; such documents are called documentary evidence.

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." Since evidence means and includes all statement which the court permits or requires to be made,. when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can be proved either or by evidence or by some other evidence which the Court permits or requires to be advanced.

Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exist or not. Where on the other hand, evidence which is made conclusive is adduced, the Court has no option but to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence., In substance, therefore, there is no difference between conclusive evidence and 792 conclusive proof. Statutes may use the expression 'conclusive proof' where the object is to make a fact non justifiable. But the legislature may use some other expression such as 'conclusive evidence' for achieving the same result. There is thus no difference between the effect of the expression conclusive evidence' from that of 'conclusive proof', the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.

Learned counsel contends that it is open to the Court to examine whether the action of the executive, even in the absence of an allegation that it is malafide, is related to the section or not and for this purpose to consider whether the acquisition is for a public purpose. In support of this contention he has relied upon the decision in State of Bihar v. Maharajadhiraja Sir Kameswarsingh of Darbhanga(1).

There, Mahajan, J. 'as he then was,) has expressed the view that the exercise of power to acquire compulsorily is conditional on the existence of public purpose and that being so this condition is not an express provision of Art.

31 (2) but exists aliund in the content of the power itself.

That, however, was not the view of the other learned Judges who constituted the Bench. Thus according to Mukherjea, J., (As he. then was), the condition of the existence of a public purpose is implied in Art. 31(2). (See pp. 957, 958).

Das. J. (as he then was), was also of the same view. (See pp. 986 988). Similarly Patanjali Sastri, C.J., has also taken the view that the existence of public purpose is an express condition of cl. 2 of Art. 31.

The Constitution permits acquisition by the State of private property only if it is required for a, public purpose. But can it; therefore, be said (1) [1952] S.C.R.889 935.

793 that the provisions of a statute must be so construed that the declaration by the Government as to the existence of public purpose is necessarily justiciable ? We are not concerned here with a post Constitution law but with a pre-Constitution law. The Act has been in operation since 1894.

The validity of the law was challenged before this Court in Babu Barkya Thakur v. The State of Bombay (1) on the ground that it infringes the provisions of Arts. 31(2) and 19(1)(f) of the Constitution. But this Court held that the law being a pre-Constitution law is protected from the operation of Art. 31(2) by the provisions of Art. 31(5) (a). It also held, following the decision in the State of ,Bombay v. Bhanji Munji (2) and that in Lilavati Bai v. The State of Bombay (3) that the attack under Art. 19(1)(f) of the Constitution is futile.

The argument, however, is that the protection which the Act enjoys is only to this extent that even though any of its provisions be in conflict with Art.31(2) the Act cannot be challenged on that ground ; the protection does not however extend to other provisions of Part III of the Constitution, such as Art. 19(1)(f). As we understand the decision in Bhanji Munji's case (2) what this Court has held is that for a right under Art. 19(1).(f) to bold property to be available to a person, he must have the property with respect to which he can assert such right. If the right to the possession of the property is taken away by law protected by Art. 31 (5) (a), Art. 19 (1) (f) is not attracted. That is the decision of this Court and it has been followed in two other cases. All the decisions are binding upon us. It is contended that none of the decisions has considered the argument advanced before us that a law may be (1) (1961) 1 S.C.R. 128(2) 0935) 1 S.C.R. 777(3) (1957) S.C.R. M.

794 protected from an attack under Art. 31 (2) but it *ill still be invalid under Art. 13 (2) if the restriction placed by it on the right of a person to hold property is unreasonable.

In other words, for the law before us to regarded as valid it must also satisfy the requirements of Art. 19(5) and that only thereafter can the property of a person be taken away.

It is sufficient to say that though this Court may not have pronounced on this aspect of the matter we are bound by the actual decisions which categorically negative an attack based on the right guaranteed by Art. 19(1)(f). The binding effect of a decision does not depend upon whether. a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. That point has been specifically decided in the three decisions referred to above.

We, therefore, hold that since the Act provides that the declaration made by the State that a particular land is needed for a; public purpose shall be conclusive evidence of the fact that it is so needed the Constitution is not thereby infringed.

For ascertaining the extent to which the determination by the State is conclusive it would be desirable to examine the relevant provisions of the Act. The preamble states that the law is for the acquisition of land needed for public purposes and for companies and incidental matters connected therewith. Section 2(f) defines public purpose as follows :

"the expression 'public purpose' includes the provision of village sites in districts in which the appropriate Government shall have declared by notification in the Official Gazette that it is customary for the Government to make such provision:" 795 This is an inclusive definition and not a compendious one and therefore, does not assist us very much in Ascertaining the ambit of the expression 'public purpose'.

Broadly speaking the expression public purpose' would, however, include a purpose in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitallv concerned. Then there is s. 4 which enables the State to publish a preliminary notification whenever it appears to it that land in any locality is needed or is likely to be, needed for a public purpose. The other aspects of the section have no bearing upon the point before us and we need not refer to them. Then there its s. 5A which gives to the person interested in the land which has been notified as being needed or likely to be needed for a public purpose or for a company, the right to object to the acquisition of the land.

Such objection has to be heard by the Collector and after making such further enquiry as he thinks necessary the record has to be submitted to the appropriate Government along with the report containing the Collector's recommendations and the objections. subsection (2) of s. 5A makes the decision of the Government on the objections final. This is followed by s. 6 sub. s. (1) of which provides that when the Government is satisfied that any particular land is needed for a public purpose, or for a company, a declaration should be made to that effect and such declaration should be published in the Official Gazette. Sub-section (2) specifies the matters including the purpose for which the land is needed which are to be set out in the declaration. Subsection (3) makes the declaration conclusive evidence of the fact that the land is needed for a public purpose or for a company, as the case may be. Section 17 of the Act confers special powers on the Government which are exercisable in cases of emergency.

Sub-section (4) thereof provides 796 that in those cases which fall under sub-s. (1) or Sub-s. (2) the appropriate Government may direct that the provisions of s. 5A of the Act shall not apply and also empowers the Government to make a declaration under s.6 in respect of the land to be acquired at any time after the publication of the. notification under sub-s. (1) of s.4.

These are the provisions which have a bearing on the point under consideration.

It is clear from these provisions that the object of the law is to empower Government to acquire land only for a public purpose or for a company, and, where it is for a company the acquisition is subject to the provisions of Part VII. As has been pointed out by this Court in R. L. Arora v. The State of Uttar Pradesh (1) the acquisition for a company contemplated by Part VII is confined only to cases where the Government is satisfied that the purpose of obtaining the land is erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith or for the construction of some work which is likely to prove directly useful to the public.

After a notification under sub.s. (1) of s.4 is published a person interested in the land is entitled to object to the acquisition. That objection may be raised on any ground as for instance that the land is not in fact needed at all for any purpose or that it is not suitable for the purpose for which it is, sought to be acquired or that the purpose is not a public purpose or what is said to be a company is not a company and so on. Finality is attached to the decision of the Government which ultimately has to decide such objections. Then follows s.6 which enables the Government to make a declaration provided that it is satisfied that a particular land is needed for a, public purpose or for a company. No doubt, (1) (1962) Supp. 2 S.C.R. 149.

797 it is open to the State Government in an emergency by exercising its powers under sub. s. (4) of s. 17, to say that the provisions of s. 5A would not apply. But for construing the provisions of s. 6 it would be relevant to bear in mind that section. The scheme of the Act is that normally the provisions of s. 5A have to be complied with. Where, in pursuance of the provisions, objections are lodged, these objections will have to be decided by the Government. For deciding them the Government will have before it the Collector's proceedings. It would, therefore, be clear that the declaration that a particular land is needed for a public purpose or for a company is not to be made by the Government arbitrarily, but on the basis of material placed before it by the Collector. The provisions of sub.s. (2) of s. 5A make the decision of the Government on the objections final while those of sub-s (1) of s. 6 enable the Government to arrive at it; satisfaction. Sub-section (3) of s. 6 goes further and says that such a declaration shall be conclusive evidence that the land is needed for a public purpose or for a company.

It is, however, argued by learned counsel that the conclusiveness or finality attached to the declaration of Government is only as regards the fact that the land is "needed" but not as regards the question that the purpose for which the land is needed is in fact a public purpose or what is said to be a company is really a company. Subsection (1) does not affect a dichotomy between "need" and "Public purpose or a company". There is no justification for making such a dichotomy. By making it, not only will the language of the section be strained but the purpose of the law will be stultified. The expression must be regarded as one whole and the declaration held to be with respect to both the elements of the expression.

798 The Government has to be satisfied about both the elements contained in the expression "needed for a public purpose or a company". Where it is so satisfied, it is entitled to make a declaration. Once such a declaration is made subs. (3) invests it with conclusiveness. That con-, elusiveness is not merely regarding the fact that the Government is satisfied but also with regard to the question that the land is needed for a public purpose or is needed for a company, as the case may be. Then again, the conclusiveness must necessarily attach not merely to the need but also to the question whether the purpose is a public purpose or what is said to be a company is a company. There can be no "need" in the abstract. It must be a need for a 'public purpose' or for a company. As we have already stated the law permits acquisition only when there is a public purpose or when the land is needed for a company for the purposes set out in s. 40 of the Act. Therefore, it would be unreasonable to say that the conclusiveness would attach only to a need and not to the fact that that need is for a public purpose or for a company. No land can be acquired under the Act unless the need is for one or the other purpose and, therefore it will be futile to give conclusiveness merely to the question of need dissociated from the question of public purpose or the purpose of a company. Upon the plain language of the relevant provisions it is riot possible to accept the contention put forward by learned counsel.

Learned counsel put the matter in a slightly different way and said that s. 6 (3) presupposes that the jurisdictional fact exists, namely, that there is a public purpose or the purpose of a company behind the acquisition and, therefore, the question whether it exists or not is justiciable. The Act has empowered the Government to determine the question of the need of land for a public 799 purpose or for a company and the jurisdiction conferred upon it to do so is not made conditional upon the existence of a collateral or extraneous fact. It is the existence of the need for a public purpose which gives jurisdiction to the Government to make a declaration under s. 6 (1) and makes it the sole judge whether there is in fact a need and whether the purpose for which there is that need is a public purpose. The provisions of sub-s. (3) preclude a court from ascertaining whether either of these ingredients of the declaration exists.

It is, however, said that that does not mean that in so far as the meaning to be given to the expression public purpose is concerned the courts have no power whatsoever. In this connection the decision of the Privy Council in Hamabai Framjee Petit v. Secretary of State for India (1) was referred to. In that case certain land in Malabar Hill in Bombay was being acquired by the Government of Bombay for constructing residences for Government officers and the Acquisition was objected to by the lessee of the land on the ground that the land was not being taken or made available to the public at large and, therefore, the acquisition was not for a public purpose. When the matter went up before the High Court Batchelor, J., observed:

"General definitions 'are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase,public purposes' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community., as opposed to, the X X particular 1)b P (1914) L.R. 42 IA. 44.

800 interest of individuals, is directly and vitally concerned." In that case what was being considered was a re-entry clause in a lease deed and not provisions of the Land Acquisition Act. That clause left it absolutely to the lessor, the East India Company to say whether the possession should be resumed by it if the land was required for a public, purpose. It was in this context that the question whether the land was needed for a public purpose was considered.

The argument before the Privy Council rested upon the view that there cannot be a 'public purpose' in taking land if that land, when taken, is not in some way or other made, available to the public at large. Rejecting it they held that the true view is that expressed by Batchelor, J., and observed:

"That being so, all that remains is to determine whether the purpose here is a purpose in which the general interest of the community is concerned. Prima facie the Government are good judges of that. They are not absolute judges. They cannot say ,,sic volo sic jebeo, but at least a Court would not easily hold them to be wrong. But here, so far from holding them to be wrong, the whole of the learned judges, who are thoroughly conversant with the conditions of Indian life, say that they are satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants. From such a conclusion their Lordships would be slow to differ, and upon its own statement it commends itself to their judgment".

Mr. Pathak strongly relied on these observations and said that the Privy Council have held that the matter is justiciable. It is enough to say 801 that that was not a case under the Land Acquisition Act and, therefore, conclusiveness did not attach itself to the satisfaction of the Government that a particular purpose fell within the concept of public purpose.

Mr. Pathak then contended that the question as to the meaning to be given to the phrase 'public purpose' is not given conclusiveness by sub-s. (3) of s. 6. According to him all that sub-s. (3) of s. 6 says is that the Government's declaration that particular land is needed for a public purpose or a company shall be conclusive and that it does not say that the Government is empowered to define what is a public purpose and then say that the particular purpose falls within that definition. As already stated no attempt has been made in the Act to define public purpose in a compendious way. Public purpose is bound to vary with the times and the prevailing conditions in a given locality and, therefore, it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given and for a public purpose.

It was contended on the basis of the decision of this Court in R. L. Arora v. The State of U. P. (1) that-the Courts have power to consider whether the purpose for which land is being acquired is a public purpose. In that case land was being acquired, as already stated, for a company and the real question which arose for consideration was, what is the meaning to be attached to the words "useful to the public" occurring in cl. (b) of sub-s. (1) of s. 40 of the Act. The land was required by the company to enable it to establish its works and it was contended before this Court that the products manufactured (1) [1962] Supp. 2S.C.R.149 802 by the company will be useful to the public in general and, therefore, the acquisition would be covered by cl. (b) of sub-s. (1) of s. 40. Negativing this contention Wanchoo, J., who spoke for the Court observed :

"It is true that it is for the Government to be satisfied that the work to be constructed will be useful to the public but this does not mean that it is the Government which has the right to interpret the words used ins. 40 (1) (b)......It is the Court which has to interpret what those words mean. After the court has interpreted these words, it is the Government which has to carry out the object of ss. 40 and 41 to its satisfaction. The Government cannot say that ss. 40 and 41 mean this and further say that they are satisfied that the meaning they have given to the relevant words in these sections has been carried out in the terms of the agreement provided by them.................The Government cannot both give meaning to the words and also say that they are satisfied on the meaning given by them. The meaning has to be given by the Court and it is only thereafter that the Government's satisfaction may not be open to challenge We have already indicated what these words mean and if it plainly appears that the Government are satisfied as a result of giving some other meaning to the words, the satisfaction of the Government is of no use, for then they are not satisfied about what they should be satisfied.

In the present case the Government seems to have taken a wrong view that so long as the product of the works is useful to the public and so long as the public is entitled to go upon the works in the way of Body text Uf tQ34pe4-~ 803 business, that is all that is required by the relevant words in as. 40 and 41' required It was no doubt argued before the Court that the declaration made by the Government under s. 6 (1) that the land was needed for a company is conclusive and, therefore, the question as to the actual purpose of the acquisition is not justiciable. This Court pointed out that s. 6 (3) makes the declaration under s. 6 (1) conclusive evidence of the fact that the land is needed for a public purpose or for a company and that as the declaration stated that the land was needed for a company and that fact was not disputed by the parties, the provisions of s. 6 (3) were of no assistance.

We may point out that even according to that decision conclusiveness attaches itself to the declaration that the.

land is required for a public purpose and. therefore,.

instead of assisting the petitioners it in fact assists the respondents. No doubt, in so far as an acquisition for a company is concerned Part VII requires that before a declaration under s. 6 (1) is made the Government should be satisfied that the land is required for one of the two purposes set out in s. 40 (1) of the Act. The Government can consent to the making of a declaration under a. 6 (1) after it is satisfied under s. 41 about the fact that the land is required for a company fort the purposes set out in el. (a) and (b) of that section. But the declaration made thereafter is confined only to one matter and that is that the land is required for a company and nothing more. The question whether in fact the land is required by the company for the purposes set out in el. (a) and (b) of s. 40 (1) is not germane to the declaration. No doubt the power of the Government to make a declaration with respect to an acquisition for a company is circumscribed and, therefore, the Government is expected to exercise it with due regard to the limitation placed upon it. But it does not follow that sub-a. (3) 804 of S. 6 makes the declaration conclusive evidence not only of the fact that the land is required for a Company but also of the fact that the land is required by a company for a purpose specified in s. 40 (1) of the Act. The observations made by Wanchoo, J., therefore do not assist the petitioners.

Reliance was then placed on two decisions of this Court in which the meaning of the expression "public purpose" is considered. One is Babu Barkya Thakur v. The State of Bombay (1). There this Court observed "It will thus be noticed that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited." Later in the same judgment this Court pointed out that where a large section of the community is concerned its welfare is a matter of public concern. The other is Pandit Jhandu Lal v. The Slate of Punjab (2). There this Court has pointed out that the purpose of public utility referred to in ss. 40 and 41 are akin to the public purpose.

No doubt in these decisions this Court stated what, broadly speaking, the expression 'public purpose' means. But in neither case the question arose for consideration as to whether the meaning to be given to the expression 'public purpose' is justiciable.

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the. State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be (1) [1961] 1. S.C.R. 126, (2) [1961]2.SC.R.459.

805 final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose act all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final.

A number of decisions were cited before us by the learned Advocate-General in support of the contention that the declaration of the Government is final. One of those decisions is Wijeyesekera v. Festing (1). In that case dealing with Ceylon Ordinance No. 3 of 1876 (Acquisition of Land Ordinance, (Ceylon), 1876) which incidentally did not contain a provision similar to that of sub-s. (3) of s. 6, their Lordships observed:

"The whole frame of the ordinance shows that what the District Court is concerned with is the assessment of compensation, but their Lordships do not desire torest their opinion that the decision of the Governor is final merely upon the question. of the Court before which the question is raised. It appears to their Lordships that the decision of the Governor that the land is wanted for public purposes is final, and was intended to be final, and could not be questioned in any Court." There, the land was required :(or a road and the contention was that the Government did not take the opinion of the Surveyor General as to its fitness (1) [1919] A.C. 646.

806 for such purpose. On this ground it was contended that the Governor's declaration could be questioned. But this was negatived by the Privy Council. Following this decision in Vadlapatla Suryanarayana v. The Province of Madras(1) a Full Bench of the Madras High Court held that a declaration by the Provincial Government under s. 6(1) of the Act that certain lands were required for a public purpose is final and, where there is no charge against the Provincial Government that it had acted in fraud of its powers its action in directing the acquisition cannot be challenged in a Court of law. Similar view has been taken in Samruddin Sheikh v. Sub-Divisional Officer.(2) ; V. Gopalakrishna v.

The Secretary, Board of Revenue, Madras (3); S. Jagannadha Rao v. The State of Andhra Pradesh (4) ; Secretary of State for India in Council v. Akbar Ali (5). Several other decisions to the same effect, some of them post Constitution, were also mentioned by the learned Advocate General, which take the same view as in these decisions.

Not a single decision was however, brought to our notice in which it has been held that the question as to what is a public purpose or whether it exists can be inquired into by the Courts even in the absence of colourable exercise of power, because s. 6(3) has become void under Art. 13(2) of the Constitution.

It was next contended that sub-s. (3) of s. 6 cannot stand in the way in a proceeding under Art. 226 or under Art.

32 of the Constitution and in support of this argument reliance was placed upon the decision in Chudalmuthu Pillai v. State (6) ; Maharaja Luchmeshwar Singh v. Chairman of the Darbhanga Municipality (7);

(1) I.L R [1916] Mad. 153.(2) A.I.R (1954) Assam 81.

(3) A.I.R 1954 Mad.362.(4) A I.R 196O A.P. 343.

(5) (1923) I.L.R. 45 All. 413. (6 ) I.L. R. [1932] Tra.

Cochin. 488, (7) (1890) L.R. 17 nI.A. 90.

807 Rajindra Kumar Ruia v. Government of West Bengal (1) ; Major S. Arjan Singh v. State of Punjab (2) ;. In the first mentioned case it was contended that the order was actuated by mala fides and also that there were various irregularities in the proceedings. As we have already indicated, if the declaration is vitiated by fraud, then the declaration is itself bad and what is bad cannot be protected by sub-s. (3) of s. 6. In the next case the act of the Court of Wards in handing over the ward's lands for a nominal consideration for a public purpose was challenged in a suit. The challenge was upheld by the Privy Council on the ground that lawful possession could only be taken by the State in strict compliance with the provisions of the Land Acquisition Act. The question raised here did not arise for consideration in that case. In the other two cases the declaration was challenged under Art. 226 and in both the cases the challenge failed. In the first of the two latter mentioned case it failed on the ground that there was no fraud and in the second on the ground that the provisions of sub.s. (3) of s. 6 precluded the court from challenging the validity of the declaration. None of these cases, therefore support the contention of the petitioners.

Moreover we are not concerned here with the powers of the High Court under Art. 226 but with those of this Court. It is said, however that the bar created by s. 6(3) would not stand in the way of this Court while dealing with a petition under Art. 32 and, therefore, it is open to us to ascertain whether an acquisition is for a public purpose or not.

While it is true that the powers of this Court cannot be taken away by any law which may hereafter be made unless the Constitution itself is amended we are here faced with a provision of law which is a pre-Constitutional law and which is protected by the (1) A.I.R. 1952. Cal. 573. (2) I.L.R.[1958] Punjab 1451.

808 Constitution-to the extent indicated in Art. 31(5)(a) and an I attack on its validity on the ground that it infringes the right guaranteed by Art. 19(1)(f) has failed. Therefore-it