BABU BARKYA THAKUR versus STATE OF BOMBAY AND OTHERS

Sardar San1sher Singh v. Ua;a Sar,lar l\'arain ~Others

one on account of costs, that is, for 11. total sum of lls. 2,04,366-5-9 with proportionate costs with interest pendente lite and future interest a.t the rate of 4 per cent. per annum simple from tho date of the applica-tion, i.e., October 26, 1936, till realisation. '

Accordingly, we allow tho appeal, set aside the decree passed by the courts below and order t bat in place of the decree made by the Trial Court be sub-stituted money decree in the terms as mentioned above.

Tho appellant will get his costs in the appeal.

Appeal all-Owed.

August 8.

BABU BARKYA THAKUR v.

THE STATE OF BOMBAY AND OTHERS.

(B. p_ SINHA, c. J., JA}'ER IMAM, A. K. SARKAR,

K. N. WANCHOO and J.C. SHAH, JJ.)

Land Acquisilion--Preliminary notification-Land needed for company-Non ·tnrnlion of public p11rpose-Lega!ity-Procudings, if violate f11ndamrntal rights-Land Acquisition Act, 1894 (I of 1894), ss. 4, 5A, 6, 40-Co1>stitution of India, Arts. 19(r)(j), 3r.

By notification under s. 4 of the Land Acquisition Act, 1894, the State of Bombay (now }!aharashtra) sought to acquire certain lands, including those o( the petitioner, which were like-ly to be needed by company, manufacturing steel bars and rods, for its factory and buildings and appointed Special Land Acquisition Officer to !unction as Collector under s .. 5A of the Act. The petitioner by an objection filed before the said officer denied that the lands were required for public purpose and prayed that the proceedings be quashed. By his petition to this Court under Art. 32 of the Constitution the petitioner challeng-ed the legality of the notification under s. 4 of the Act on the ground that it did not in tern1s say that the acquisition \\'as for public purpose, and that the acquisition proceedings infringed Arts. 19 and 31 of the Constitution.

Held, that it is not essential that notification under s. 4 of the Land Acquisition Act, 1894, should expressly state that

the land sought to be acquired is needed for public purpose. Where the land is required for a· company, the requirement of the law will be sufficiently met if the appropriate Government is satisfied on report under s. 5A(2) . or by an enquiry under s. 40 of the Act. that the purpose of the acquisition is the same as contemplated by s. 40 cif the Act. .

Babu Barkya Thakur. v.

The State of

.It is apparent from the definitions of the expressions 'com- _Bombay & Others

pany ' and ' public purpose ' contained in s. 3 of the Act that the former is·used in very comprehensive sense and the latter is used in its gen.eric sense including any purpose which may bene-fit even fraction of the commnnity and such purposes as are mentioned in .s. 40 of the Act must fall within its ambit.

State of Bombay v. Bhanji Munji, [1955] r .S.C.R. 777, referr-ed to. ·

notification under s. 4 of the Act envisages 'preliminary investigation and it is only under s. 6 that the Government makes firm declaration. It is not, therefore, correct to say ·that defect in the notification can be fatal to the·acquisition proceedings and particularly where 'the acquisition is.for _a com-pany and investigation has to be made under s. 5A or s; 40 after the issue of the notification. In this view of the matter the present application must be premature.

. Clause (6) of the Art. 31 'has obviously no application to the Land·Acquisiti'on Act, 1894, and so it is saved by Art. 31(5)(a) of the Consiitut~on even if it contemplates acquisition for com-pany which may or may not be for public purpose.

Lilavati Bai v. State of Bombay, [1957] S.C.R. 721, referr-ed to.

The attack under Art. l9(1)(f) of the Constitution must also fail in view of the decision of this Court in State "of Bombay v. Bhanji Munji, [1955] r S.C.R. 777.

ORIGINAL JURISDICTION: Petition No. 134 of 1959.

Petition under Art. 32 ofthe ConsLitution of India. for enforcement of fundamental rights.

· 'J, C. Bhatt, R. Ganapathy Iyer and G. Gopalakrish-

_nan, for the petitioner.

N. S. Binrl.ra, R. H. Dhebar and T. M. Sen, for res-

pondents Nos. 1- and 2.

S. K. Kapur, P. M. Mukhi a,nd B. P. Maheshwari,

for respondent No. 3.

1960. August 8.. The Judgment of the Court wa.s delivered by

z96o SINHA C. J.-This petition under Art. 32 of the Babu Batkya Constitution impugns the constitutionality of the land Thak"r a.cq uisition proceedings with particular reference to v. the notification under s. 4 of the Land Acquisition Act The State of (hereinafter referred to a.s " the Aot ") in respect of an Bombay <>- Others area. o{ land within the district of Thane. in the State of Bombay, now known a.s the State of :Maharashtra..

Babu Batkya Thak"r v. The State of <>-Sinha c. J.

In order to appreciate the controverny raised in this case, it is necessary to state the following facts. By a. notification dated April 3, 1959, the first respondent, the State of Bombay (now Maharashtra) under s. 4 of the Land Acquisition Act of 1894, stated that the lands specified in the schedule attached to the said notification were likely to be needed for the purposes of the third respondent, Messrs. Mukund Iron & Steel Works Ltd., a. company registered under the Indian Companies Act, 1913, and having its registered office a.t Kurla, Bombay No. 37, in the State of Maharashtra, for its factory buildings etc. The notification further stated that under cl. (c) of s. 3 of the Act, the Government was pleased to appoint the Specie.I J..a.nd Acquisition Officer, the second respond-ent, to perform the functions of the Collector under s. 5A of the said Act. The land in w hi eh the petitio-ner, who is a. citizen of India., claims to be interested a.s owner is included in the schedule aforesaid. The petitioner appeared before · .. the second respondent aforesaid and after several adjournments lodged objec-tions on June 9, 1959 and also made ore.I submissions through his Ad voca.te on that date and the day following, and requested the second respondent to quash the proceedings on the ground that the lands contained in the notifioa.tion were not required for any publio purpose a.nd that the proceedings were vexatious and malicious. It was further stated before the second respondent that the third respondent had negotiated by private treaty for the purchase of the notified area. The second respondent adjourned further hearing of the ease in order to enable tho petitioner and the third respondent to come to a.n amicable settlement. further hearing took place before the second respondent on July 15, 1959. On

that date the petitioner proposed to lead evidence of '96° owners of several pieces of land included in the ·area . l . l Babu Barkya notified for acqmsition to prove t at t · an s me u -Thakur · ed in the schedule. to the· notification were not as v. matter of fact required by the third respondent for The state of any public purpose and that the third respondent had Bombay & Dthers even negotiated for the purchase of the said lands by Sinha C. ]. private treaty, ut t secon respon ent re use permission to lead such evidence on behalf of the · petitioner.The . petitioner raises number of questions of law attacking the constitutionality of the land acquisition proceedings and prays for orders or directions to the State Government not to give its consent to the afore-said acquisition under s. 39 of the Act nor to enter into any agreement with the third respondent under s. 41 of the Act nor to issue notification under s. 6 of the Act declaring that the land in question is needed fo~ public purpose, becau"e after such declaration . the petitioner may be deprived qf the opportunjty of contending that · the land was not needed for public purpose.

The third respondent, through its Business Mana-ger, has .put in an affidavit in answer to the petitio-ner's case. and has contended that this writ petftion is premature and not maintainable, that so far, only notification under s. 4 of the Act has been· issued and objections under s. 5A on· behalf of the petitioner have been heard by the second respondent, that the State Government has yet to be satisfied as to whether .. the acquisition is for purposes specified in s. 40 of the Act and so long as the previous consent of the appro-priate Government has not beei1 given, the provisi6ns of ss. 6 to 37 of the Ac£ cannot be put into operation. It is denied that the acquisition is not for public purpose and that the proceedings are vexatious or malicious. The third respondent does not admit that the second respondent refused permission to the peti-tioner to lead any evidence. The averments in the petition on the merits of the controversy are denied. It· is stated on behalf of the third respondent that public are vitally interl?sted' in the production of this

z96o Company, the chief products boing st.col bars and rods which a.re in groat public demand and a.re of such Bab11 Harkya · 1 • J Th•k•" vita. necessity to t country t a.t t 1eir very pro uc-v. tion, distribution, supply and price are controlled by The s1a1, of tho Government. The products of the Com;ia.ny are llombay ~ Olhm consumed directly in hulk for public utility projects like dams, hydro-electric projects, roads, railways, industri-Si•h• c. J. al plants and housing projects, both in the public and private sectors, which constitute the core of the several live year plans of the Government. It is further stated that the Company (respondent No. 3) has in. eluded in its proposed industrial expansion projects to be established on the land sought to be acquired, extensive provisions for housing for large number of employees' families as also for their welfare by provid-ing for parks, gardens, playgrounds, medical relief centre and similar other amenities for the welfarn of the employees and their families. All those projects, it is claimed on behalf of the third respondent, aro a. "highly commendable public purpose" which is far more advantageous to the community in general than to shareholders of the Company. It is further stated that the first respondent ma.de detailed investigation a.bout the usefulness to tho public of the expansion project of the Company including employees' . housing schemes and welfare projects and when it was satisfied a.bout the borwfideB of the respondent Company and the genuineness and urgency of their projects and their utility to the public tha.t Lho first respondent published the notification under s. 4 of the Act on April 3, 1959.

The affidavit sworn to by the second respondent, Specie.I Land Acquisition Officer, Thana, also questions the maintainability of the writ petition and generally supports the ca.se sought to be ma.de out by the third respondent. It is a.lso stated on his behalf that the petitioner or a.ny of the other persons interested in the land sought to be acquired did not produce any evidence a.nd that it was absolutely incorrect to se.y that he prevented anyone from leading any evidence as alleged. The Special Land Acquisition Officer has ma.de the following ca.tegorica.1 statements :-

'9[[60 ]]

" It is denied that the acquisition of the said '9[[60 ]]lands for the purpose of the third respondent is in no Babu Barkya way useful to the public or that the public are not Thakur entitled to the use of any of the works of the Com-· v. pany as alleged by the petitioner. I say that the . The State of products which are being produced and will be· pro- Bombay & Others · duced are used and intended to be used inter alia in Sinha c. J. public undertakings intended for the general indus-trial development of the country. It is denied that the proposed acquisition is· .merely for the benefit of few individuals, namely, the'shareholders of the Com-pany as alleged by the petitioner."

Further on he adds the following :-

"With reference to paragraph 13 of the said petition, it ·is denied that I did not permit the peti-tioner to lead any evidence before me as alleged by the petitioner. This allegation, I say, is absolutely dishonest and false. It is denied that the notification issued by Government under se'ction 4 of the said Act · is not bona fide or is an abuse of the powers vested in Government. It is denied that the said notification is illegal or that it is not made _in good faith". .

On these allegations and counter allegations the petitioner has moved this Court to exercise its powers under Art. 32 of the Constit1ition on.the grounds that the notification under s. 4 of the ct 'is illegal, that the land acquisition. proceedings are in violation of Arts. 14, 19 and 31 of the Constitution and that the. acquisition is not for public purpose and is mala fide.

In· order to determine the present controversy, it · will be convenient, at this stage, to examine the rele-vant provisions of the Act. The Act has the following preamble:-

" Whereas it is expedient to amend the law for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisi-tion; ...... ".

In tho definitfou section·3, the definitions of " Com-. pany" and "public . purpose " are particularly note-worthy. The expression" Company" has been used in very comprehensive.sense of including not only

[ 1961 J

r96o the Companies registered under several statutes, Indian a.nd English, but also includes society rngis-Bab" Rark)'a na•"' tered under the Societies Registration Act of 1860 and v. a. registered society within the meaning of the Co-ope-The State a/ ra.th·e Societies Act. The expression "public purpose" Bombay & Others includes the provision of village sites in distl'icts in which the appropriate Government shall have <lccla.r-Si•h• c. f. ed by notification in the official gazette that it. is customary for the Government to make such provi-sion. It will thus be noticed that the expression "public purpose" has bcoo used in its generic sense of including any purpose in which even a. fraction of the community may be interested or by which it may be benefited. The proceedings begin with Govern-ment notification under s. 4 that land in any locality is needed or is likely to be needed for any public pur-pose. On the issue of such notification it is pClrmissi-ble for public servant a.ad workmen to enter upon the land to do certain acts specified therein with view to ascertaining whether the land is adapted for the purpose for which it was proposed to be acquired as also to determine the boundaries of the land pro-posed to be included in the scheme of acquisition. lt will be noticed that though the preamble ma.J;es reference not only to public purposes, but ,.iso to Companies, the preliminary notification under s. 4 has reference only to public purpose and not to a. Company.Section 5A, which was inserted by the a.me11din~ Act of 1923 and makes provision for hearing of objec-tions by any person interested in any land notified under s. 4, makes reference not only to public purpose, but also to Company. It is noticeable that s. 5A pre-dicates th1\t the notification under s. 4(1) may not only refer to land needed for a. public purpose, but a.lso to land ncoded for.a. Company and after the enquiry as contemplated by s. 5A has been made a.nd t.he Collector has heard objections, if any, by interested parties be has to submit his report t-0 the Government along with the rocord of the proceedings held by him a.nd his recommendations on the objections. Thereupon, the Government bas to make up its mind whether or not

. the objections were well-founded and the decision of z96o the appropriate Government of those objections is to be treated as final. If the Government decides to over.. Bab;/:,.::ra . rule the objections and is satisfied that the hl.nd, the -,. subject-matter of the proceedings, was needed for a' The State of public purpose or for Company, declaration has to Bombay.:& Others be made to that effect. Such declaration has to be published in the official gazette and has to contain the Sinha c. f. particulars of the land including its approxima,te area and the purpose for which it is needed. Once · the declaration -under s. 6 has been made, it shall be con-clusive evidence that the land is needed for public purpose or for Company. Then follow the usual proceedings after notice is given to the parties concern-ed to claim.c3mpensation in respect of any interest in the land in question ; and the award after making the necessary investigation aH to claims to conflicting title, the compensation to be' allowed in respect of the land, and; if necessary, apportionment of the amount of c~mpensatiou .amongst the persons believed to be interested in the land under acquisition. We are not concerned here with the proceedings that follow upon · the award of the Collector and the matters to be agitated therein.,

The State of . Others Sinha c. f.

From the preamble as also from the provisions of ss. 5A, 6 and 7, it is obvious that the Act makes clear distinct.ion between acquisition of land needed for public purpose and that· for Company, as if . land needed for Oonipany is not also for public . purpose. The Act has gone further and has devoted Part VII to acquisition of land for Companies and in sub-s. (2) s. of 38, with which Part VII begins, provides that in the case of an acquisition for Company, for the words " for such purpose " the words " for pur-poses of the Company" shall be deemed to have been substituted. It has been la.id down by s. 39 that the machinery of the Land Acquisition Act, beginning with s. 6 and ending with s. 37, shall not he put into operation unless two conditions precedent are fulfilled, namely, (1) the· previous consent of the appropriate Government has been obtained and (2) an agreement in terms of s. 41 has been execute~ by t_he Company.The condition precedent to the giving of consent afore-Babu Harkya said by the appropriate Government is that the Thak'" Government ha.s t-0 be satistiecl on the report oft he v. enquiry envisaged by s. 5A(2) or by enquiry held The State of under s. 40 itself that the purpose oft.ho acquisition is Bombay & Othm to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provi-si .. ha c. f. sion of amenities directly connected therewith or that such acquisition is needed for the construction of some work which is likely to prove useful to tho public. When the Government is satisfied as to the purposes aforesaid of the acquisition in question, the appropriate Government aha.II require the Company to euter into an agreement pro\•iding for the payment to the Govern-ment (l) of the cost of the acquisition, (2) on such payment, the transfer of the land to the Company a.nd (3) the terms on which the land shall he held by the Company. The agreement has also to ma.ke pro\·ision for the time within which the conditions on whic.h and the manner in which the dwelling houses or n.menitics shall .be erected or provided and in the case of con-struction of any other kind of work the time within which and the conditions on which the work shall be executed and maintained and the terms on which the public shall he entitled to use the work.

Such are the relevant provisions of the Act that we have to consider with reference to the question of the constitutionality of the land acquisition proceedings now impugned. The first ground of attack is based on Art. 31(2) of the Constitution. The provisions of Art. 31(2) make it clear beyond all controversy that in order that property may be compulsorily acquired, the acquisition must be for public purpose and by autho-rity of law. But Art. 31(5)(a) lays down that nothing in cl. (2) shall affect the provisions of any existing law other than law to which the provisions of cl. (6) applies (and the Act is obviously law to which the provisions of cl. (6) do not apply). Therefore even i~ the Act contemplated acquisition for company which may or may not he for public purpose, it would he saved by Art. 31(5)(a) as an existing law. (See Lilavati Bai v. State of Bambay (') ). F'urther, though it may (1) [19~7J S.C.R. 721.

appear on the words of the Act contained in Part II, r96o which contains the operative portions of the proceed-, Babu Barkya ings leading up to acquisition by the Collector that Thakur acquisition for Company may or may µot be for v. public purpose, the provisions of Part VII make it The State of clear that the appropriate Government cannot permit Bombay & Others the bringing into operation the effective machinery of · the Act unless it is satisfied as aforesaid, _namely, that · Sinha c. f. the. purpose of acquisition is to enable the Company to erect dwelling . houses for workmen employed by it or for the provision of amenities directly connected with the Company or that the land is needed for construc-tion of some work of public utility. These require; ments indicate that the acquisition for Company also is in substance for public purpose inasmuch as it cannot be seriously contended that constructing dwelling houses, and providing amenities for the bene-fit of the workmen employed by it and construction of some work of public utility do not serve public pur. pose. It is not necessary for the purposes of this case to go into the question whether acquisition for Com: pany, even apart from the provisions of s. 40, will be .. for public purpose, or justifiable under the provi-sions of the Act, even on the assumption that it will not serve public purpose. T.he facts of the present case have not been investigated,. as this Court was moved when only notification. under s. 4 of the Act had been ·issued; and the purpose of the acquisition in question was still at the enquiry stage. By s. 38A, which was inserted by the amending -Act of 1933, it has been made clear that an industrial concern not being Company, ordinarily employing not less than 100 workmen, may also take the advantage of land acquisit,ion proceedings if the purpose of the acquisi-tion is the same a's is contemplated by s. 40 in respect of. Companies. It has been recognised by this Court in the case of The State of Bombay v-Bhanji Munji and Another ([1]) that providing housing accommodation to the homeless is a. public purpose.· In an industrial con-cern employing large number of workmen awa.y.

· Sinha c. f. ,_

(I) [1955] I s.c.R: 777 .

1960 from their homes it is social necessity that thore should be proper housing accommodation available for Rabu flark>·a k Wh l · I Thak"' sue wor men. ere argc sectwn o t 1c commu-v. nity is concerned, its welfare .is matt.er of public Tl" State of concern. Similarly, if Company is generous enough /lunoba.1· ,.;. OtJ.er.< to erect a. hospital or public reading room and libr-ary or an educational institution open to the public, it Sinha c. J. cannot be doubted that the work is one of public utility and comes within the provisions of the Act. We a.re not in possession of all the rolevant facts in the present case as to the exact purpose for which the land is sought to be acquired. That investigation was in ·progress when the petitioner moved this Court. Hence, the contention raised on behalf of the respon-dents that the. application is premature is not wholly devoid of merit.

But the main attack on the constitutionality of the

proceedings in question was based upon the notifica-tion under s. 4, which is in theso terms:-

"Ex." A".

NOTIFICATIO:N"

REVENUE DEPARTMENT.

Sachivalaya, Bombay, 3rd April, 1959.

LAND ACQUlSlTIOK ACT, 1894 (I of 1894). District Thana.

No. LTH. 15-59/42051-H-Whereas it appears to

the Government of Bombay that tho lands specified in the schedule hereto are likely to be needed for the purposes of the Company, viz., for factory buildings, etc., of l'll/s. Mukund Iron and Steel Works Limited, Bombay. It is hereby notified under the provisions of section 4 of the Land Acquisition Act, 1894 (I of 1894), that the said lands are likely to be needed for the purpose specified above.

All persons interested in the said lands are hereby warned not to obstruct or interfere with any surveyors or other persons employed upon the said lands for the purpose of the said acquisition. Any contracts for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise, or any outlay or improvements made therein, without the sanction of the Collector after the date of this notification will,

under section 24 (seventhly) of the said Act, be dis-z96o regarded by the officer assessing compensation for such Babu Batkya parts of the said lands as may be finally acquired. Thakur · If the Government of Bombay is satisfied that the v. said lands are needed for the aforesaid purpose, final The State of notification to that effect under s. 6 of the said Act Bombay·&- Others will be published in the Bombay Government Gazette in due course. If t acquisition IS . an one w o y JI Sinha C. ]. or in part, the fact will be duly notified in the Bombay. Government Gazette. ·

Under clause (c) of section 3 of the Land Acquisi-tion Act, 1894, the Government of Bombay is pleased to.appoint the Special Land Acquisition Officer, Thana, to . perform the functions of Collector under section 5-A of the said Act in respect of the said lands."

It is' argued that in terms the notification does not state that the land sought to be acquired was needed for public purpose. In our opinion, it is not absolu-tely necessary to the validity of the land acquisition proceedings that that statement should find place in the notification actually issued. The requirements of the law will be satisfied if, in substance, it is found on. investigation, and the appropriate Government is satisfied as result of the investigation that the land was needed for the purposes of.the Company, which· would amount to public purpose under Part VII, as already indicated.' See in this connection The State of Bombay v. Bhanji. Munji and Another ([1]). In that case the quest.ion was whether the Bombay Land Requisi-tion Act (Bombay Act XXXIII of 1948) was invalid inasmuch as the purpose for the requisition was not in express terms . stat-ed to be public purpose. This Court laid it down that the statute was not invalid for that reason provided that from the whole tenor and intendment of the Act it could be gathered that the property Was acquired either for the purpose of the State or for any public purpose. · · ·

It is further argued that s. 4(1) of the Act had deli-berately omitted the words " for Company " and insisted upon public purpose. The abserice from the notification under' s. 4 aforesaid of those .words, (I) [1955] I S:C.R. 777·

namely, for public purpose, are fat&! to the proceod- ·

Babu Rarkya ings. Tho purpose of the notification under s. 4 is to Th"'"' carry on a. preliminary invostiga.tion with a. view to v. finding out after necessary survey and ta.king of levels, 1he s1a1e of a.nd, if necessary, digging or boring into the sub.soil Bombay b· Ollom whether the land was adapted for the purpose for which it wa.s sought to be acquired. It is only under Srnha c. .f. a. 6 tha.t firm docla.ra.tion ha.a to be ma.de by Govern-ment that la.nd with proper description and a.rea. so as to be identifiable is needed for public purpose or for a. Company. What was mere proposal under a. 4 becomes the subject matter of a. definite proceeding for acquisition under the Act. Hence, it is not correct to say that a.ny defect in the notification under s. 4 is fa.ta.I to the validity of tho proceedings, particularly when the acquisition is for Company a.nd the pur-pose has to be investigatod under a. 5A or s. 40 neces-sarily after the notification under s. 4 of the Act.

The other attack under Art. 19(l)(f) of the Constitu-tion is equally futile in view of the decisions of this Court in State of Bombay v. Bhanji Munji and An-other(') and Lilavati Bai v. State of Bombay('). Nothing wa.s sa.id with reference to the provisions of Art. 14 of the Constitution, though tha.t Article ha.a been referred to in the grounds in support of the writ petition. For the reasons given above, this petition must bo dismissed with costs to the contesting parties.

Petition dismissed.

(1) [1955] I !!.C.R. 777'.

(2) [1957] S.C.R. 7Zt.