Full Judgment Text
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PETITIONER:
THE COLLECTOR (DISTT. MAGISTRATE) ALLAHABAD AND ANR.
Vs.
RESPONDENT:
RAJA RAM JAISWAL ETC.
DATE OF JUDGMENT29/04/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION:
1985 AIR 1622 1985 SCR (3) 995
1985 SCC (3) 1 1985 SCALE (1)1044
CITATOR INFO :
D 1988 SC1459 (14)
D 1989 SC 682 (10)
RF 1991 SC 711 (13)
ACT:
Land Acquisition Act, 1894 section 4 (1), scope of-
Acquisition of Land For public purpose-Whether notification
in the official gazette and causing public notice of the
substance of such notification the need of a land for a
public purpose, mandatory-Concept of prejudice-Where in a
case, objections have been filed to the acquisition
proceedings, pursuant to an earlier notification whether non
publication and non notification of its substance in the
locality and of a corrigendum thereof issued later would
still vitiate the proceedings. under section 4 (1)-Effect Of
the world shall in section 4 (1)-When malafides are
attributed, impleading of the proper party effected thereby
is obligatory-Malafides-Legal malafides explained.
HEADNOTE:
Raja Ram Jaiswal along with the members of his family
purchased land bearing plot No. 26 with a building thereon
admeasuring 2978 sq. yds. situated at K.P. Kakkar Road in
March 1971. The plan for a sound proof air-condition ed
cinema theatre on the said plot submitted by him was
sanctioned both by the District Magistrate and the local
municipality in December, 1970 and thereafter he applied for
a certificate of approval under Rule 3 read with Rule 7 (2)
of the U.P. Cinematograph Rules. 1951 for construction of a
Cinema theatre.
The Hindi Sahitya Sammelan which was initially formed
as a voluntary organisation in 1910 and registered as a
society under the Societies Registration Act on January 8,
1914 retaining the same name had earlier acquired and taken
possession from the Allahabad Municipal Board land
admeasuring 7315 sq. yds. and in which a municipal school
was located for purpose of building "Sangrahalaya" or a
museum-cum-library-cum-reading room. However no museum has
come up and the land lies vacant. This Sammelan raised
objections to the grant of a permit for the constructions of
the cinema theatre as in its view a theatre and a research
cum study center can go ill together. Overruling the
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objections, the District Magistrate, the Licensing Authority
under the U.P. Cinema (Regulation) Act, 1955 granted the
requisite certificate of approval, on March 24, 1972, under
Rule 3 which would in law imply that having regard to the
provisions of the 1955 Act, and 1951 Rules, there was no
legal impediment to the construction of a cinema theatre on
plot No. 26. Having failed to thwart the grant of
certificate of approval, the Sammelan wrote a letter on
October 13,
996
1971 for acquiring land bearing plot No. 26 admeasuring
approximately 2865 sq. yds. On the ground that it was needed
for a public purpose namely for extension of Hindi
Sangrahalaya of Hindi Sahitya Sammelan Prayag. This
Notification was published in the U.P. Government Gazette on
February 9, 1974.A notice under section 4 (1) bearing the
same date was served upon the petitioner as also the same
was published in the locality. The petitioner challenged the
validity of the notification on diverse grounds in Writ
Petition No. 1932/74 and obtained interim stay of taking
over possession.
In the meantime, by Notification dated February 6,
1975, the earlier Notification dated January 31, 1974 was
cancelled and a fresh Notification was issued to acquire
"land bearing No. 62 admeasuring 8265 sq yds." and published
in the U.P.. Gazette on February lc. 1975. Consequently Writ
Petition No. 1932174 was got dismissed as infructuous.A
notice dated March 6. 1975 under section 5 of the Land
Acquisition Act was served upon the petitioner inviting him
to file his objections, if any. The petitioner filed
detailed objections on March 8, 1975 inter alia contending
that the acquisition is for a company and the pre-requisite
for acquisition for a company having not been carried out,
the acquisition is had in law. It was also contended that
the petitioner is not the Owner of plot No. ’2 admeasuring
8265 sq. yds Promptly on March 13, 1975, a corringendum was
issued and published in the Gazette on March 22, 1975
correcting the notification dated February 6, 1975 to read
that instead of plot No. 62 Plot No. 26 be read and instead
of area 8265 sq. yds., 2865 sq. yds. be read. The substance
of Gazette the notifications dated 15.2.1975 March 22, 1975
were not published in the locality as required under section
4 (1). Tn between the issue of the notification and the
corrigendum, the petitioner filed Writ Petition 3174175
questioning the validity Or the notification dated February
6, 1975 and duly amending the grounds after issue of the
corrigendum. The High Court negatived the challenges namely,
(a) that the Notification was bad for non compliance first
with the provisions or the Land Acquisition ((Companies))
Rules, 1953; and (b) that the acquisition proceedings are
malafide but quashed the impugned notification on the ground
of failure to cause public notice of the substance of
Notification under section 4 (1) to be published is the
locality. Hence the State appeal (CA No. 2458/80) by special
leave and the Special Leave Petition No. 9019/80 by Raja
Ram.
Dismissing the State appeal and allowing in part the
Special Leave Petition. the Court.
^
HELD: 1. When the validity of a Notification is
questioned on the ground of malafides, proper parties
affected by such an allegation must be impleaded in the
petition. In this case, Sammelan’s application for
intervention under Order XX Rule 3 of the Supreme Court
Rules 1966 must be granted though the Sammelan has not moved
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this Court against the High Court’s order rejecting the
application for impleading. [1004D-E]
2.1 It is true that ordinarily courts do not interfere
at the stage of Sec. 4 notification because it merely
constitutes a proposal which will be meticulously examined
after the objections arc filed under Section SA by tho
person interested
997
in the land wherein all aspects of the matter can be
threadbare gone into and examined. However, as a
notification under section 4 (I) initiates the proceedings
for acquisition of land and uses the expression ’shall’ the
mandate of the legislature bcomes clear and therefore, the
infirmities therein cannot be wholly overlooked on the
specious plea that the courts do not interdict at the stage
of a more proposal. 11006-G]
2.2 A bare perusal of section 4 (1) clearly shows that
in order to comply with the statutory requirements therein
set out, a notification stating ’therein the land which is
needed or is likely to be needed for a public purpose has to
be published in the official Gazette. The second part of the
sub-section provides that ’the Collector has to cause public
notice of the substance of ’such notification to be given at
convenient places in the locality in which the land proposed
to be acquired is situated. Both the conditions are
mandatory. Unless both these conditions are satisfied,
section 4 of the Land Acquisition Act cannot be said to have
been complied with. Nor can Court whittle down a mandate of
legislation recognised by a long line of decisions solely
depending upon the facts of a given case; as is herer
Further after the 1974 (U.P. Amendment and Validation Act
VIII of 1974), Section 4 (1) on its true interpretation may
unmistakably indicate that where the enquiry under Section 5
A is not dispensed with by resorting to Sec. 17 (4),
compliance with the second part of Section 4 would be
mandatory.
[1006H, 1007A-D, 1009D-E]
Khub Chand and Ors. v. State of Rajasthan and Ors.,
[1967] I SCR 120 at 125; Babu Barkya Thakur v. The State of
Bombay, [1961] I SCR 128: Smt. Somavanti and Ors. v. The Sf
are of Punjab & Ors., [1963] 2 SCR 774; State of Mysore v.
Abdul Razak Sahib, [1973] I SCR 856 referred to.
Gangadharaih v. State of Mysore &: Ors., (1961) Mys.
L.J. 883 approved.
2.3 It is not correct assume that the sole purpose
behind publication of substance of Notification in locality,
as required secondly in section 4 (1) of the Land
Acquisition Act is to make requirement of section 5 A
’functionally effective. [1009G]
Where a decision of the Government to be effective and
valid has to be notified in the Government Gazette, the
decision itself does not become effective unless a
notification in the Official Gazette follows. Therefore,
assuming that a notification is a formal expression of a
decision of the Government to acquire land, unless the
decision is notified in the Government Gazette by an
appropriate notification, the proceedings for acquisition
cannot be said to have been initiated and the decision would
remain a paper decision, Section 4 (1) further requires that
’the Collector shall cause public notice of the substance of
such notification to be given at convenient places in the
said locality ’ The expression ’such notification’ in the
latter part of Section 4(1) and sequence of events therein
enumerated would clearly spell out that first the Government
should reach a decision to acquire land, then publish a
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notification under section 4 (1) and simultaneously or
within a reasonable time from the date of the publication of
the notification cause a notice to be published containing
substance of such notification meaning thereby that
notification which is pub-
998
lished. Obviously, therefore, there cannot he a publication
in the locality prior to the issuance of the notification.
[1010B-G]
Babu Barkya Thakur v. The State of Bombay, [1961] I SCR
128; Narendra Bahadur Singh and Anr. v. State of U.P. & Ors,
[1977] 2 SCR 226; State of Madhya Pradesh & Ors. v. Vishnu
Prasad Sharma & Ors, [1966] 3 SCR 557 held in applicable.
Mahendra Lal Jaini v. The State of Uttar Pradesh & Ors,
[1963] Supp. I SCR 912 relied on.
3.1 Where power is conferred to achieve a purpose
the power must be exercise reasonably and in good faith to
effectuate the purpose. And in this context ’in good faith’
means for legitimate reasons. Where it is exercised for
extraneous or irrelevant consideration or reasons, it is
unquestionably a colourable exercise of power or fraud on
power and the exercise of power is vitiated. If the power to
acquire land is to be exercised, it must be exercised bona
fide for the statutory purpose and for none other. If it is
exercised for an extraneous, irrelevant or non-germane
consideration, the acquiring authority can be charged with
legal malafides. In such a situation there is no question of
any personal ill-will or motive [1018C-E]
Municipal Council of Sydney v. Compbell, [1925] A.C.
338 at 375 quoted with approval.
State of Punjab v. Gurdial Singh & Ors, [1980] I
SCR 1071 explained and followed.
3.2 Where power is conferred to achieve a certain
purpose, the power can be exercised only for achieving that
purpose. Section 4(1) confers power on the Government and .
the Collector to acquire land Deeded for a public purpose.
The power to acquire land is (o be exercised for carrying
out a public purpose. If the authorities of the Sammelan
cannot tolerate the existence of a cinema theatre in its
vicinity it cannot he said that such a purpose would be a
public purpose. The authority of the Sammelan may honestly
believe that the existence of a cinema theatre may have the
pernicious tendency to vitiate the educational and cultural
environment of the institution and therefore. it would like
to wish away a cinema theatre in its vicinity. That hardly
constitutes public purpose. The proclaimed need of land for
putting up Sangrahalya is an easy escape route whenever
Sammelan wants to take over some piece of land. Need of the
land for Sangrahalya is a figment of imagination consured up
to provide an ostensible purpose for acquisition. There is
enough land roughly admeasuring 7315 sq. yds. Lying vacant
and unutilised with the Sammelan for over a quarter of a
century. The Sangrahalya has not come up though this was the
land which was taken from the Municipal Board for the avowed
object of putting up a Sangrahalya. The Sammelan moved on to
Rangamanch and Natyashala and then ultimately adopted a
position that when the land is made available, scheme will
be devised for its proper use. The Sammelan was ever
interested in acquiring the land for effectuating any of its
objects. It was neither the plans nor the wherewithal nor
any specific object
999
for which it needs land and it is unable to use over years
the land already available at its disposal. Therefore, the
Sammelan was actuated by extraneous and irrelevant
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considerations in seeking acquisition of the land and the
statutory authority having, ’known this fact yet proceeded
to exercise statutory pwoer and initiated the process of
acquisition. [1017F-H, 1018A B]
3.3 The power to acquire land was a exercised for an
extraneous and irrelevant purpose and it was colourable
exercise of power, namely, to satisfy the chagrin and
anguish of the Sammelan at the coming up of a cinema theatre
in the vicinity of its campus, which vowed to destroy. There
fore, the consideration dated 6 2.1975 is illegal and
invalid. [1019E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2458 and
S.L.P. No. 9019 of 1980
From the Judgment and Order dated 7.12. 1979 of the
Allahabad High Court in Civil Misc. Writ Petition No. 3174
of 1975
R.N. Trivedi, Additional Advocate General, Gopal
Subramaniam and Ms. Shobha Dikshit for the Appellants.
F.S Nariman, Raja Ram Agarwal, Yogeshwar Prasad, Mrs.
Rani Chhabra and Ms. Suman Bagga for the respondent.
The Judgment of the Court was delivered by
DESAI, J. Respondent Raja Ram Jaiswal moved Civil
Miscellaneous Writ Petition No. 3174 of 1975 under Art. 226
of the Constitution in the High Court of Judicature at
Allahadad questioning the validity of the Notification dated
February 6, 1975 issued under Sec. 4(1) of the Land
Acquistion Act (’Act’ for short) as also a notice dated
March 6, 1975 served upon him pursuant to the afore-
mentioned notification. The impugned notification was
published in the U.P. Government Gazette dated February 15,
1975. By this impugned notification, land bearing Plot No.
62 approximately admeasuring 8265 sq. yds. was sought to be
acquired as being needed for a public purposse namely for
extension of Hindi Sangrahalaya of the Hindi Sahitya
Sammelan Prayag.A substances of this notification was
published in the locality where the land sought to be
acquired is situate. On March 22, 1975, a corrigendum dated
March 13, 1975 was published by which the impugned
notification dated February 15, 1975 was to stand corrected
Plot No. 26 instead of 62 and the area sought to be acquired
to be read as 2865 sq. yds.
1000
instead of 8265 sq. yds. After the publication of the
corrigendum the petitioner sought amendment of the petition
which was granted. Validity of the amended notification was
challenged on diverse grounds. However, at the hearing of
the petition, the challenge was confined to the following
four grounds as summarised in the judgment of the High
Court. They may be extracted:
"1. Notification dated 6.2.75 issued under Sec. 4 of
the Land Acquisition Act is invalid in as much as
it had been issued without first complying with
the provisions of rule 4 of the Land Acquisition
(Companies) Rules, 1963.
2. Acquisition proceedings are mala fide.
3. Notice under section 4(1) of the Act was served
upon the petitioner on 6th March, 1975 when only
two days time was left for filing objections under
Section 5-A of the Land Acquisition Act. This
rendered the proceedings illegal.
4. The notification under Section 4(1) did not relate
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to plot No. 26 belonging to the petitioner.
Proceedings to acquire the said plot are therefore
without jurisdiction."
After the petition was amended two additional grounds
of challenge were pressed on behalf of the respondent. They
are:
"1. The notification dated 13th March, 1975 is invalid
for the very same reason for which the
notification dated 6th February, 1973 is claimed
to be invalid.
"2. The Land Acquisition proceedings are invalid
inasmuch as the notification dated 13th March,
1975 was neither published nor was its substance
notified in the locality, as also because no
notice thereof had been served upon the
petitioner."
Negativing all the challenges except the one that as
there was failure to cause public notice of the substance of
notification under Sec. 4(1) to be published at convenient
place in the locality on
1001
this short ground, the impugned notification was quashed.
Hence this appeal by the Collector, Allahabad and the Land
Acquisition Officer by special leave.
Respondent who was the original petitioner but is
respondent in the appeal filed by the Collector will be
referred to as the petitioner in this judgment.
Petitioner field Special Leave Petition No. 9019 of
1980 against the same judgment contending that the High
Court committed an error in rejecting the challenge to the
validity of the impugned notification on the ground of legal
mala fides as also on the ground of non-compliance with Rule
4 of the Land Acquisition (Companies) Rules, 1963.
As both these matters arise out of the same judgment,
they were heard together and are being disposed of by a
common judgment. It may be mentioned that connected Civil
Appeal No. 2437 of 1981 was to be taken up for hearing after
the hearing concluded in D the present appeal and therefore,
the judgment in this matter was postponed because the
observations in one were likely to have some impact on the
disposal on merits of the contentions in the cognate appeal.
Though very much delayed by circumstances beyond our
control, few days back the hearing in the cognate appeal is
over and therefore, both the appeals can now be disposed of
though by separate judgments.
A brief resume of the facts leading to the writ
petition field in the High Court would be quite instructive
in this case. The Hindi Sahitya Sammelan (’Sammelan’ for
short) for whose benefit the land was sought to be acquired
was initially formed as a voluntary organisation in 1910 and
on January 8, 1914 it was registered as a society under the
Societies Registration Act retaining the same name. Some
where in 1950 difference arose between the members of the
society and the attempt to alter the constitution of the
society, ultimately led to litigation. U.P.. Legislature
enacted an Act styled as U.P. Hindi Sahitya Sammelan Act No.
36 of 1956 under which a statutory body was created under
the name of Hindi Sahitya Sammelan. The statutory body was
to take over the management and properties of the society.
The Act was however struck down as unconstitutional in
Damyanti Naranga v. Union of India & Ors.(l) The pre-
existing Sammelan which was a registered society
(1) [1971] 3 S.C.R. 840
1002
continued to function as such. It is for the benefit of the
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Sammelan that the land involved in the dispute was sought to
be acquired. According to the Sammelan, it is in need of
land for building ’Sangrahalaya’ which was roughly
translated as museum-cum-library cum reading room.
At the instance of the Sammelan, Allahabad
Municipal Board agreed to hand over the land and building in
which a municipal school was located, situated at Kamta
Prasad Kakkar Road adjacent to the Central office and Press
of the Sammelan, on certain conditions. The Sammelan needed
the land, as it was then declared, to establish a museum.
The land with the school building thereon was transferred to
the Sammelan in 1953. It may be mentioned that even till
today the area of land admeasuring 7315 sq. yds. in
possession of the Sammelan is Lying vacant and for the
quarter of a century, museum has not come up. This aspect is
mentioned in some detail as it has an impact on the
contention canvassed in these appeals.
Petitioner Jaiswal along with the members of his family
purchased land bearing plot No. 26 with a building thereon
admeasuring 2978 sq. yds. situated at K. P. Kakkar Road in
March 1970. The petitioner wanted to build a sound-proof
air-conditioned cinema theatre on the plot No. 26 purchased
by him. The plan for the proposed theatre was sanctioned
both by the District Magistrate and the local municipality
in December 1970. It may be recalled here that the judgment
of this Court holding Hindi Sahitya Sammelan Act
unconstitutional was rendered on February 23, 1971. The
Sammelan was wholly opposed to the construction of a theatre
near its campus as in its view a theatre and a research-cum-
study centre can go ill together. Therefore, when the
petitioner applied for a certificate of approval under Rule
3 read with rule 7(2) of the U.P. Cinematograph Rules 1951
for construction of a cinema theatre, authorities of the
Sammelan raised a storm of protest, sometimes peaceful
occasionally likely to turn violent impelling authorities to
impose restrictive orders under Sec. 144, Code of Criminal
Procedure. Sammelan also submitted a long memorandum setting
out its objections with a view to persuading the authorities
not to grant a certificate of approval for construction of a
cinema II (1)
[1971] 3 S.C.R. 840
1003
building. Overrullng the objections the District Magistrate,
the Licencing Authority under the U.P. Cinemas (Regulation)
Act, 1955 granted the requisite certificate of approval
under Rule 3 which would in law imply that having regard to
the provisions of the 1955 Act and 1951 Rules, there was no
legal impediment to constructing a cinema theatre on plot
No. 26. Thereupon, Secretary of the Sammelan addressed a
letter to the Chief Minister of State of U.P. complaining
against the grant of the permission by the District
Magistrate and requesting the Chief Minister to cancel the
permission. Ultimately, having failed to thwart the grant of
certificate of approval. the Sammelan wrote a letter on
October 13, 1971 for acquiring land bearing Plot No. 26. It
may be recalled that the certificate of approval for
constructing a cinema building was granted by the District
Magistrate on March 24, 1972. The Sammelan addressed various
letters to various authorities including the then Prime
Minister of India requesting them to cancel the certificate
of approval granted to the petitioner. Ultimately on January
31, 1974, a notification under Sec. 4(1) of the Land
Acquisition Act, 1894 was issued stating therein that the
land bearing plot No.‘26 admeasuring approx. 2865 sq. yds.
was needed for a public purpose namely for extension of
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Hindi Sangrahalaya of Hindi Sahitya Sammelan Prayag’. This
notification was published in the U.P. Government Gazette on
February 9, 1974.A notice under Sec. 4(1) bearing the same
date was served upon the petitioner as also the same was
published in the locality. The petitioner challenged the
validity of this notification on diverse grounds in Writ
Petition No. 1932174 and as a measure of interim relief, the
High Court stayed further proceeding that may be taken to
acquire the land. In the meantime by notification dated
February 6, 1975, the earlier notification under Sec. 4(1)
dated January 31, 1974 was cancelled and a fresh
notification was issued to acquire ’land bearing plot No. 62
admeasuring 8265 sq. yds for the earlier mentioned public
purpose’. Consequently, the writ petition in which the
validity of the earlier notification was questioned was
disposed of as infructuous. The second notification dated
February 6, 1975 was published in the U.P. Gazette on
February 15, 1975.A notice dated March 6, 1975 under Sec. 5A
of the Land Acquisition Act was served upon the petitioner
inviting him to file his objection, if there be any, against
the proposed acquisition. The petitioner filed detailed
objections on March 8, 1975 inter alia contending that the
acquisition is for a
1004
company and the pre-requisite for acquisition for a company
having not been carried out, the acquisition is bad in law.
It was also contended that the petitioner is not the owner
of plot No. 62 admeasuring 8265 sq. yds. Promptly on March
13, 1975, a corrigendum was issued and published in the
Gazette on March 22, 1975 correcting the notification dated
February 6, 1975 to read that instead of plot No. 62, plot
No. 26 be read and instead of area 8265 sq. yds. 2865 sq.
yds. be read. In between the issue of the notification and
the corrigendum, the petitioner filed Writ Petition 3174/75
questioning the validity Or the notification dated February
6, 1975. The High Court struck down the notification as
invalid and during the pendancy of the writ petition in the
High Court, further continuance e of the acquisition
proceedings were stayed.
If the petitioner questioned the validity of the
notification on ground of mala fides, he ought to have
joined Sammelan as respondent. Having failed to implead a
proper party, he behaved curiously in opposing the
application of the Sammelan for being impleaded as a party.
The High Court was in error in rejecting the application.
Therefore, when the Sammelan moved an application for
intervention under Order XX rule 3 of the Supreme Court
Rules, 1966, we granted the same and Mr. S.N. Kacker learned
counsel appeared for the Sammelan at the hearing of these
appeals and addressed his oral arguments and submitted
written submissions.
The High Court struck down the notification holding
that in order to be a valid notification under Sec. 4(1), it
has to be published or notified for general information in
the Official Gazette and for purposes of Sec. SA of the Act,
it would be taken to have been published on the date of such
publication in the Official Gazette, and the second part of
Sec. 4(1) requires the publication of the substance of the
notification in the locality’- This having not been complied
with, the notification was bad and invalid. The correctness
of this view is questioned on behalf of the appellants.
After scruitinising the evidence placed on record, the
High Court has recorded a finding that the substance of the
notification was not published in the locality either after
15th February, 1975 when the notification dated February 6,
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1975 was first published in the Official Gazette or after
March 22, 1975 when the corrigendum was
1005
published in the Official Gazette and thus the requirement
of the second part of Sec. 4(1) has not been complied with.
The finding that there was no such publication as herein
indicated was not seriously questioned and in fact could not
be questioned.A few facts will affirmatively establish it.
The first notification dated January 31, 1974 was published
in the official Gazette dated February 9, 1974 and in
respect of which a notice was published in the locality in
March, 1974.A copy of the notice was served on the
petitioner on March 6, 1974. This notification bore the
number 78- VIII-LAQ and it was in respect of plot No. 26
admeasuring 2865 sq. yds. This notification was cancelled
and superseded by another notification No. 552-VIII-LAQ
dated February 6, 1975, which was published in the Official
Gazette dated February 15, 1975. This latter notification
clearly recites that the earlier notification dated February
9, 1974 is thereby cancelled. In the latter notification
dated Feb. 6, 19751 the land proposed to be acquired was
shown to be plot No. 65 admeasuring 8265 sq. yds. Admittedly
notice of the substance of this notification was not
published in the locality. The petitioner had nothing to do
with land bearing plot No. 62 admeasuring 8265 sq. yds. As
the previous notification was cancelled, he had nothing to
worry about the second notification which has no relevance
to the plot belonging to him. The corrigendum dated March
13, 1975 was issued and published in the Official Gazette
dated March 22, 1975 correcting the plot number and the area
and the corrected entry was to be in reference to plot No.
26 and area to be acquired was to be 2865 sq. yds.
Admittedly, there was no notice of publication of the
substance of the notification dated February 15, 1975 nor of
the corrigendum dated March 22, 1975 in the lacality. The
High Court was therefore, right in holding that in respect
of the later notification and corrigendum, no notice was
published in the locality and latter part of Sec. 4(1) was
not complied with.
Sec. 4(1) in its application to the State of U.P. read
as under:
"4(1): Whenever it appears to the appropriate
Government or Collector that land in any locality is
needed or is likely to be needed for any public
purpose, a notification to that effect shall be
published in the Official Gazette, and the Collector
shall cause public notice of the substance of
1006
such notification to be given at convenient places in
the said locality."
By Land Acquisition (U.P. Amendment And Validation) Act
Vlll of 1974, the section was amended to read as under:
"4(1): Whether it appears to the appropriate
Government and the Collector that land in any locality
is needed or is likely to be needed for any public
purpose, a notification to that effect shall be
published in the Official Gazette, and except in the
case of any land to which by virtue of a direction of
the State Government under Sub-section (4) of Sec. 17,
the provisions of Sec. 5-A shall not apply, the
Collector shall cause public notice of the substance of
such notification to be given at convenient places in
the said locality."
Though this amendment of 1974 is subsequent to the
impugned notification, yet some reference was made to it to
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buttress the sub mission that the only purpose of a
notification under Sec. 4(1) and the public notice in the
locality is to make functionally effective the provisions of
Sec. 5A so that the persons interested in the land sought to
be acquired can canvass his objections against the proposed
acquisition. We shall presently deal with it.
Mr. S.N. Kacker for the intervener and Mr. Dikshit for
the State of U.P. urged that ordinarily courts do not
interfere at the ,. stage of Sec. 4 notification because it
merely constitutes a proposal which will be meticulously
examined after the objections are filed under Sec. 5A by the
person interested in the land wherein all aspects of the
matter can be threadbare gone into and examined. Broadly
stated, one cannot take serious exception to this
submission. However, as a notification under Sec. 4 (1)
initiates the proceedings for acquisition of land aud uses
the expression ’shall’ the mandate of the legislature
becomes clear and therefore, the infirmities therein cannot
be wholly overlooked on the specious plea that the courts do
not interdict at the stage of a mere proposal.
bare perusal of Sec. 4 (1) clearly shows that in order
to comply with the statutory requirements therein set out, a
notification
1007
stating therein the land which is needed or is likely to be
needed for a public purpose’ has to be published in the
official Gazette. The second part of the sub-section
provides that ’the Collector has to cause public notice of
the substance of such notification to be given at convenient
places in the locality in which the land proposed to be
acquired is situated. Both the conditions are held by a
catena of decisions to be mandatory Whether the second
condition is mandatory or directory is no more res integra.
In Khub Chand and Ors. v. State of Rajasthan and Ors.(1),
Subba Rao, CJ speaking for the court observed that ’the
statutory intention is, therefore, clear, namely, that the
giving of public notice is mandatory. If so, the
notification issued under s. 4 without complying with the
said mandatory direction would be void and the land
acquisition proceedings taken pursuant thereto would be
equally void.’ While reaching this conclusion, the Court
distinguished the decision in Babu Barkya Thakur v. The
State of Bombay(2) wherein it was held that ’any defect in
the notification under Sec. 4 is not fatal to the validity
of the proceedings, particularly when the acquisition is for
a company and the purpose has to be investigated under s. 5A
or s. 40 necessarily after the issue of the notification
under s. 4 of the Act’. The Court pointed out that the
defect with which the notification in Bahu Barkya Thakur’s
case sufferred was of a formal nature and did not go to the
root of the matter. However, the decision is not an
authority for the proposition that if a public notice of the
notification was not given as prescribed by s. 4, it can be
ignored. The pertinent observation of the court is that such
an approach would constitute rewriting The section. The
court also referred to Smt. Somavanti and Ors. v. The State
of Punjab & Ors.(3) and quoted with approval the statement
therein made that a valid notification under sub-s. (I) of
Sec. 4 is a condition precedent t-) the making of a
declaration under sub-s. (1) of Sec. 6. This view has been
consistently followed and was approved in State of Mysore v.
Abdul Razak Sahib(4), wherein it was observed that in the
case of a notification under Sec. 4 of the Land Acquisition
Act, the law has prescribed that in addition to the
publication of the notification in the Official Gazette, the
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Collector must also give publicity of the substance of the
notification in the concerned locality. Unless both these
conditions are satisfied, s. 4
(1) [1967] 1 S.C.R. 120 at 125.
(2) [1961] 1 S.C.R. 128.
(3) [1963] 2 S.C.R. 774.
(4) [1973] 1 S.C.R. 856.
1008
of the Land Acquisition Act cannot be said to have been
complied with. The publication of a notice in the locality
is a mandatory requirement. Mr. Kacker however, drew our
attention to a few more observations in the judgment wherein
it was said that there is an important purpose behind
publication of the substance of the notification in the
locality because in the absence of such publication, the
interested persons may not be able to file their objections
challenging the proposed acquisition and they will be denied
an opportunity afforded by s. 5A which confers a very
valuable right. Relying on this observation Mr. Kacker urged
that if the underlying purpose behind publication of a
notice in the locality is to give an opportunity to the
person interested in the land to object to the acquisition,
where in a case the purpose is achieved as in this case the
petitioner having filed his objections, the failure to
publish the substance of the notification in the locality
need not be treated fatal and cannot invalidate the
proceedings. The submission as presented is very persuasive
and but for binding precedents, we would have accorded
considerable attention to it. But we would not whittle down
a mandate of legislation recognised by a long line of
decisions solely depending upon the facts of a given case.
Further the submission is predicated upon an assumption that
the sole purpose behind publication of substance of
notification in locality is to make requirements of Sec. 5A
functionally effective. The assumption as would be pointed
out is not well founded. In fact, the court in the last
mentioned case went so far as approving the decision of the
Mysore High Court in Gangadharaih v. State of Mysore &
Ors.(l) wherein it was ruled that ’when a notification under
s. 4 (1) is published in the official Gazette and it is
accompanied by or immediately followed by the public notice,
that a person interested in the property pro posed to be
acquired can be regarded to have had notice of the proposed
acquisition.’ This is a mandatory requirement for legal
compliance with requirements of Sec. 4 (1). In Narendra
Bahadur Singh and Anr. v. State of U.P. & Ors(2) this Court
reiterated that a publication of the notice in the locality
as required by the second part of s. 4 (1) is mandatory and
unless that notice is given in accordance with the
provisions contained therein, the entire acquisition
proceedings are vitiated. Repelling the contention, that
(1) [1961] Mys. L.J, 883
(2) [1977] 2 S.C.R. 226.
1009
the only purpose behind publication of a notice in the
locality is to give opportunity to the person interested in
the land to prefer objections under Sec. 5A which confers a
valuable right, it was held that even though in the facts of
that case, the inquiry under s. 5A was dispensed with by a
direction under Sec. 17 (4) of the Act, the failure to
comply with the second condition in Sec. 4 (1) is fatal. It
was pertinently observed that provisions of Sec. 4(1) cannot
be held to be mandatory in one situation and directory in
another and therefore, it cannot be said that the only
purpose behind making the publication of notice in the
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locality mandatory is to give an opportunity to the persons
interested in the land to file objections under Sec. 5A. Of
course, what other object it seeks to subserve has been left
unsaid. But the answer is not far to seek. At least we have
no doubt that the only visible and demonstralle purpose
behind publication of the substance of the notification
under Sec. 4 (1) in the locality where the land proposed to
be acquired is situated, is to give the persons interested
in the land due opportunity to submit their considered
objections against the proposed notification.
Incidentally, it may be pointed out that after the 1974
amendment, Sec. 4 (1) on its true interpretation may
unmistakably indicate that where the enquiry under Sec. 5A
is not dispensed with by resorting to Sec. 17 (4),
compliance with the second part of Sec. 4 would be
mandatory. We however do not propose to go into this aspect
because the amendment is subsequent to the notification.
Mr. Kacker however on behalf of the interveners while
conceding that there cannot be a valid acquisition unless a
notification is published in the Official Gazette and a
substance of the notification is published in the locality,
urged that publication in locality need not necessarily
follow the publication of the notification in the Official
Gazette but it may even precede the same because what is of
importance is the decision to acquire, the notification and
publication of the notice are mere formal expressions of the
decision of the Govt. to start acquisition proceedings.
Proceeding along it was said that the second requirement of
Sec. 4 (1) v z. publication of the notice in the locality is
only to make effective the provisions of Sec. 5A and that
such minor defect cannot invalidate notification under Sec.
4. To substantiate this submission, reliance was placed upon
the decisions in Babu Barkya Thakur’s case, State of Madhya
1010
Pradesh & Ors. v. Vishnu Prasad Sharma & Ors.(l) and
Narendra Bahadur Singh’s case. All these decisions do not
bear out or substantiate the submission of Mr. Kacker for
the reasons already mentioned.
Assuming that a notification in the Official Gazette is
a formal expression of the decision of the Government, the
decision of the Government is hardly relevant, unless it
takes the concrete shape and form by publication in the
Official Gazette. Where a decision of the Government to be
effective and valid has to be notified in the Government
Gazette, the decision itself does not become effective
unless a notification in the Official Gazette follows. In
Mahendra Lal Jaini v. The State of Uttar Pradesh & Ors.(2)
it was held that a notification under Sec. 4A of the Indian
Forest Act, 1927 is required to be published in the Gazette
and unless it is so published, it is of no effect.
Logically, the same view must be adopted for a notification
under Sec. 4. Therefore assuming that a notification is a
formal expression of a decision of the Government to acquire
land, unless the decision is notified in the Government
Gazette by an appropriate notification, the proceedings for
acquisition cannot be said to have been initiated and the
decision would remain a paper decision. Sec. 4 (1) further
requires that ’the Collector shall cause public notice of
the substance of such notification to be given at convenient
places in the said locality.’ The expression ’such
notification.’ in the latter part of Sec. 4 (1) and sequence
of events therein enumerated would clearly spell out that
first the Government should reach a decision to acquire
land, then publish a notification under Sec.4 (1) and
simultaneously or within a reasonable time from the date of
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the publication of the notification cause a notice to be
published containing substance of such notification meaning
thereby that notification which is published. Obviously,
therefore, there cannot be a publication in the locality
prior to the issuance of the notification. The submission of
Mr. Kacker does not commend to us.
In this context, it was next contended that at any rate
the petitioner has not suffered any prejudice by the failure
of the Government to publish a notice in the locality
because the petitioner has filed detailed objections against
the proposed acquisition. If the
(1) [1965] 3 S.C.R. 557.
(2) [1963] Supp, 1 S.C.R. 912.
1011
only purpose behind publishing the notice in the locality
was to give an opportunity to the persons interested in the
laid to file their objections, the submission would have
merited consideration, but the same has been expressly
negatived and therefore, it is futile to examine the same.
To be brutally frank if this was the only ground for
invalidating the notification, in the backdrop of facts we
would have our serious reservations in upholding the
decision, though as the law stands, the High Court was
perfectly justified in reaching this conclusion. Our
reservations have nothing to do with the perfectly legal
view taken by the High Court. They stem from the facts of
this case and our understanding of the purpose behind
publication of notice as set out by us earlier. In such a
situation, we would have developed the concept of prejudice
and the absence of it resulting in negativing the
contention. But there are other formidable challenges to the
validity of the impugned notification, which of course have
not found favour with the High Court but we are inclined to
take a different view of the matter. Therefore we let the
decision of the High Court on this point stand.
Turning to the petition for special leave filed by the
petitioner, we grant special leave to appeal and proceed to
examine the two challenges to the validity of the
notification under Sec. 4(1) which have been negatived by
the High Court. The petitioner questioned the validity of
the notification inter alia on the ground that the
acquisition was malafide and that the acquisition being for
a Company, it would be invalid for failure to comply with
the provisions of rule 4 of the Land Acquisition (Companies)
Rules, 1963. The High Court negatived both the challanges.
Mr. Nariman, learned counsel for the petitioner invited us
to examine them.
The relevant averments on the question of mala fides as
set out in the writ petition filed in the High Court may be
briefly summarised. As the objections by the Sammelan for
not granting a certificate of approval for constructing a
cinema building on Plot No. 26 were not accepted by the
Licensing authority and a certificate of approval was
subsequently granted to the petitioner, the Sammelan in
order to achieve the same object, namely, not to permit a
theatre to be constructed at the place, moved the
authorities for acquiring the land. It is averred that the
genesis of the proceeding for acquisition is not in the need
of the Sammelan but its failure to stop the cinema theatre
coming up and thus the purported need is non-
1012
existent and the initiation of the acquisition proceedings
was mala fide. Its sole purpose is to deprive the petitioner
of the cinema business which he would legally carry on.
Frankly, the averments are not very specific, clear, precise
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and to the point. But the comulative effect of the
allegations is that Sammelan being actuated by the ulterior
motive to thwart the petitioners’ project to construct a
cinema building resorted to the dubious method of seeking
acquisition of the land even though it had no need present
or in near future of the land in question. Obviously, if
such be the allegation, the Sammelan ought to have been
impleaded as a party to the writ petition Not only the
Sammelan was not impleaded as the party, but when the
Sammelan moved an application for intervention or for being
joined as a party, the petitioner was ill-advised to object
to the same and unfortunately the objection prevailed with
the High Court. We are unable to appreciate both the
objections and the view taken by the High Court. Therefore,
when Nariman pressed his petition for special leave to
appeal against the rejection of the challenge on the afore-
mentioned two grounds, we made it abundantly clear that we
would be least interested in examining the challenge founded
on the ground of mala fides in the absence of the Sammelan.
The Sammelan had moved a petition for intervention which, it
must be stated in fairness to Mr. Nariman, was not objected
in this Court and we made it abundantly clear that the
request for being impleaded as a party in the High Court
ought not to have been objected. Accordingly, the petition
for intervention was granted and the Sammelan was given an
opportunity to file its affidavit as well as any material
that it chooses to place on record. According to the rules,
the interveners are not entitled to address oral submissions
to the court but in the background of the facts of this
case, we gave full opportunity to Mr. Kacker to address oral
submissions. It is in the backdrop of these facts that we
propose to examine the challenge founded on the ground of
mala fides.
A few facts will have to be recapitulated. After the
petitioner purchased the Plot No. 26 and submitted an
application on July 6, 1971 to the licensing authority for
grant of a certificate of approval as envisaged by rule 3
read with rule 7 of U.P. Cinematograph Rules, 1951 (’1951
Rules’ for short) for constructing a cinema building on Plot
No. 26, the Sammelan promptly objected to the grant of
certificate of approval on the ground that existence of a
cinema theatre within the vicinity of the campus of the
institute of culture learning
1013
and research like the Sammelan would be destructive of the
environment and the atmosphere of the institute, and
existence of a cinema theatre at such a place would be an
incongruity. May be, it might be the honest and genuine
belief of the office-bearers of the Sammelan that an
institute of learning and research cannot co-exist with a
cinema theatre in its vicinity, and that the latter may
pollute the educational and cultural environment The
District Magistrate as the licensing authority after
corresponding with the State authorities granted the
certificate of approval on February 24, 1974. On October 13,
1971, the Sammelan sent a communication addressed to the
Chief Minister of U.P. in which it was stated that a cinema
building should not be permitted to be constructed in the
vicinity of the campus of the Sammelan. The letter also
refers to an earlier application addressed to the Chief
Minister requesting him to intervene so that the proposed
cinema house may not be permitted to be constructed near the
campus of the Sammelan, because it is likely to cause
nuisance and interfere with the activities and the academic
environment of the Sammelan. Further request was made in the
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letter that administrative sanction may be granted for
acquisition of land on which the cinema building is proposed
to be constructed offering that the Sammelan is ready to pay
whatever compensation that may have to be paid for
acquisition of the land and the building thereon. The
Ditrict Magistrate by his letter dated November 8, 1971
addressed to the Pradhan Mantri of the Sammelan pointed out
that the Revenue Board had directed that no institution
should be given land more than that required for its purpose
and that where the land is to be acquired by a body, such a
body itself must make an attempt to directly purchase the
land. Then comes a sentence which may be extracted:
"It is also evident by your above referred letter
that you stood in need of acquiring land because the
owner of the land wants to construct a cinema house
over it and the institution does not want that a cinema
should be constructed over the same.
It is clear by the above circumstances that the
land is not so much required by the institution as for
the construction of the cinema house. Therefore, I
would request you to consider the matter and if your
aim is that the cinema house is not constructed you may
resort to other means."
(underlining ours)
1014
In the meantime on December 16, 1971, Joint
Secretary to the Government of U.P. wrote to the District
Magistrate enquiring as to ’whether in granting the
certificate of approval, Rule 7 (2) of the 1951 Rules was
violated; What is the sphere of the activities of the
Sammelan; does it undertake teaching or other such
activities by virtue of which it may be placed in the
category of Educational Institutions; if for some other
reasons, construction of cinema house on proposed site is
against public interest, seek Government’s approval in this
respect specifying the reasons thereon; obtain written
objections from the Sammelan; if required take Government’s
approval making recommendations; and intimate whether cinema
building will be sound-proof.’ On March 24, 1972, the
District Magistrate as the licensing authority sent a
detailed reply inter. alia stating that the Sammelan is not
an educational institution nor a residential institution and
it has no regular programme of class teaching and it cannot
be styled as an educational institution within the meaning
of the expression in rule 7. He also opined that having
regard to all relevant factors and other circumstances
construction of a cinema building on the proposed site is
not against the public interest. He also opined that the
approved plans of the building show an air-conditioned
sound-proof cinema theatre which would enhance the
beautification of the locality and would enrich the coffers
of the State. It was lastly pointed out that the distance
between the proposed cinema building and the campus of the
Sammelan was about 95 feet as crow-fly measure. He concluded
by saying that having regard to all the circumstances, he
was of the opinion that public interest in no way would be
damaged if the permission is granted for construction of the
cinema house in question on the proposed site, and that he
was proceeding to grant permission to the applicant which is
being forwarded to the Government. After the receipt of the
permission, the old existing building on Plot No. 26 was
demolished by the petitioner and construction of a modern
cinema theatre fully air-conditioned and sound-proof was
commenced On August 7, 1983, the Sammelan moved a formal
application requesting for initiating acquisition
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proceedings of land included in Plot No. 26 as it was needed
by the Sammelan for the purpose of extension of Hindi
Sangrahalya (Museum’. Skipping over some of the intermediate
steps including a request to the then
1015
Prime Minister to intervene and thwart the cinema project,
when the first notification under Sec. 4 (1) was published,
the purpose for which the land was to be acquired was shown
to be ’extension of Hindi Sangrahalya at Hindi Sahitya
Sammelan Prayag’.
Way back on July 22, 1949, the Sammelan with a view to
establishing a museum in connection with a Hindi University
approached the Allahabad Municipal Board to transfer a
middle school building along with the Gymnacia attached to
it. The Municipal Board unanimously sanctioned the proposal
to handover the building of the school with appurtenant land
situated at Kanta Prasad Kakkar Road (that is the road on
which the irritating cinema theatre has come up) to the
Sammelan subject to the condition that the Sammelan would
construct a school building at South Malaka at a cost of Rs.
30,000. The Sammelan accepted the condition and complied
with it. The Government accorded sanction to the proposal on
September 9, 1953 and since then the school building with
the land over which it is standing and the Gymnacia were
transferred to the Sammelan. It is an admitted position that
an area of 7315 sq. yds. Of land in the Sammelan campus is
lying vacant, open and unutilised till today, that is for
thirty two years. This will have a direct impact on the
alleged need of the Sammelan of the land propsed to be
acquired. At the time of taking over the school building,
the Sammelan had contemplated putting up a museum. That
again is the purpose for- which the land involved in this
appeal is sought to be acquired at the instance of the
Sammelan. When this rather disturbing position emerged on
analysis and evaluation of uncontroverted facts, it was
suggested that the Sammelan wanted to construct a building
for Natyashala and Rangmanch for which plans have not been
prepared. All these inconvenient facts found reflection in
the order sheet of the Collector dated September 3, 1973 in
which it is stated that "since the authorities of the
Sammelan have capacity to approach the highest authority of
the democratic Government as is evident from the letters
received from their office, the office is not capable to
offer any comments whatever might be the proposal whether it
is according to the rules or against the rules or the same
should be allowed to remain as it is etc." Later on the
Sammelan stated that after the land is acquired, it would be
utilised for implementation of some new schemes. Thus though
the Sammelan indisputably had and has open land in its
possession from 1953 till 1973, it did not construct the
museum for which it had obtained land from the
1016
Allahabad Municipal Board. That apart it again moved the
Government for acquiring the land of the petitioner under
the pretext that it is needed for constructing a museum.
When the facts counter-indicated the purported need, it came
out with a suggestion that it proposed to construct
Natyashala and Rangmanch. One may in passing, a bit
humourously note that Natyashala is a place where dramatic
performances are staged and Rangmanch is a place where
dances are performed. The Sammelan would put up with them.
That would show that such performances would not be
destructive of educational and cultural environment of the
campus of the Sammelan but a modern air-conditioned sound-
proof cinema building would. We leave this without comment.
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But as these proposals failed to carry conviction, its
latest stand is that let the land come, they would devise
schemes for its proper utilisation as and when the land is
made available. This demonstrates the hollowness of the
alleged need and removes the veil thereby disclosing the
real purpose for acquiring the land.
Mr. Kacker urged that quitting the quibbling so far
resorted to, the Court may examine a forthright submisson
that the Sammelan’s interest in getting the land acquired is
not merely to construct Sangrahalya but it is equally if not
more interested in not having a cinema theatre at the place
where it is being constructed. Shorn of embellishment, the
Sammelan would not tolerate the theatre and therefore when
it failed to thwart the grant of certificate of approval and
cinema theatre came up, it took the second step to achieve
the first mentioned object viz. seek acquisition of land to
satisfy an imaginary or non-existent need. The challenge on
the ground of legal mala fides to the validity of the
notification under Sec. 4 (1), a preliminary step in the
process of acquisition has to be examined, evaluated and
answered in the backdrop of these facts.
It can be stated without fear of contradiction that
need of the land for Sangrahalya is a figment of imagination
conjured up to provide an ostensible purpose for
acquisition. There is enough land roughly admeasuring 7315
sq. yds. Lying vacant and unutilised with the Sammelan for
over a quarter of a century. The Sangrahalya has not come up
though this was the land which was taken from the Municipal
Board for the avowed object of putting up a Sangrahalya. The
Sammelan moved on to Rangamanch and Natyashala and then
ultimately adopted a position that when the land is made
available,
1017
schemes will be devised for its proper use. Could it be said
with confidence that the Sammelan was ever interested in
acquiring the land for effectuating any of its objects. It
has neither the plans nor the wherewithals nor any specific
object for which it needs land and it is unable to use over
years the land already available at its disposal. Therefore,
Mr. Kacker took bold and to some extent an imaginative
stand. He said that in seeking acquisition of the land, the
Sammelan is actuated by a desire not to have the cinema
theatre in its vicinity or if it has come into existence, to
do away with the same. When these facts stare into the face,
can it be said with confidence that the Government or the
Collector in whom the power to acquire land is vested,
exercised the power for the purpose for which it is vested
or are they guilty of legal mala fides.
The High Court disposed of the contention by an over-
simplification of this tangled web of facts without making
the least attempt at unearthing the real motives of the
Sammelan- The tell tale facts disclose motives and unravel
hidden objects- The High Court by passed them by simply
observing that there is nothing on record to indicate that
the Collector or the State Government are inclined to act
against the petitioner for any improper motives. The High
Court unfortunately missed the real contention of legal mala
fides, as also an important piece of evidence that the
Collector on whom the statute confers power to initiate
proceeding for acquisition himself was satisfied that
Sammellan sought acquisition not because it requires the
land but it wants to stop or do away with the cinema
theatre. This becomes evident from the letter of the
District Magistrate dated November 8, 1971.
It is well-settled that where power is conferred to
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achieve a certain purpose, the power can be exercised only
for achieving that purpose. Sec. 4 (1) confers power on the
Government and the Collector to acquire land needed for a
public purpose. The power to acquire land is to be exercised
for carrying out a public purpose. If the authorities of the
Sammelan cannot tolerate the existence of a cinema theatre
in its vicinity, can it be said that such a purpose would be
a public purpose ? May be the authority of the Sammelan may
honestly believe that the existence of a cinema theatre may
have the pernicious tendency to vitiate the equcational and
cultural environment of the institution and therefore, it
would like to wish
1018
away a cinema theatre in its vicinity. That hardly
constitutes public purpose. We have already said about its
proclaimed need of land for putting up Sangrahalya. It is an
easy escape route whenever Sammelan wants to take over some
piece of land. Therefore, it can be fairly concluded that
the Sammelan was actuated by extraneous and irrelevant
considerations in seeking acquisition of the land the
statutory authority having known this fact yet proceeded to
exercise statutory power and initiated the process of
acquisition. Does this constitute legal mala fides
Where power is conferred to achieve a purpose it has
been repeatedly reiterated that the power must be exercised
reasonably and in good faith to effectuate the purpose. And
in this context ’in good faith’ means ’for legitimate
reasons’. Where power is exercised for extraneous or
irrelevant considerations or reasons, it is unquestionably a
colourableq exercise of power or fraud on power and the
exercise of power is vitiated. If the power to acquire land
is to be exercised, it must be exercised bona fide for the
statutory purpose and for none other. If it is exercised for
an extraneous, irrelevant or non-germane consideration, the
acquiring authority can be charged with legal mala fides In
such a situation there is no question of any personal ill-
will or motive. In Municipal Council of Sydney v.
Compbell(1) it was observed that irrelevant considerations
on which power to acquire land is exercised, would vitiate
compulsory purchase orders or scheme depending on them. In
State of Punjab v. Gurdial Singh & Ors (2) acquisition of
land for constructing a grain market was challenged on the
ground of legal malafides Upholding the challenge this Court
speaking through Krishna Iyer, J. explained the concept of
legal malafides in his hitherto inimitable language, diction
and style and observed as under:
"Pithily put, bad faith which invalidates the
exercise of power-sometimes called colourable exercise
or fraud on power and oftentimes overlaps motives,
passions and satisfactions-is the attainment of ends
beyond the sanctioned purposes of power by simulation
or pretension of gaining a legitimate goal. If the use
of the power is for the fulfilment of a legimate object
the actuation or cataly-
(1) [1925] A.C. 338 at 375.
(2) [1980] 1 S.C.R. 1071.
1019
sation by malice is not legicidal. The action is bad
where the true object is to reach an end different from
the one for which the power is entrusted, goaded by
extraneous considerations, good or bad, but irrelevant
to the entrustment. When the custdian of power is
influenced in its exercise by considerations outside
those for promotion of which the power is vested the
court calls it a colourable exercise and is undeceived
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by illusion. In a broad, blurred sense, Benjamin
Disraeli was not off the mark even in Law when he
stated: "I repeat-that all power is a trust-that we are
accountable for its exercise-that, from the people, and
for the people. all springs, and all must exist."
After analysing the factual matrix, it was concluded
that the land was not needed for a Mandi which was the
ostensible purpose for which the land was sought to be
acquired but in truth and reality, the Mandi need was
hijacked to reach the private destination of depriving an
enemy of his land through back-seat driving of the statutory
engine. The notification was declared invalid on the ground
that it suffers from legal mala fides. The case before us is
much stronger, far more disturbing and unparalelled in
influencing official decision by sheer weight of personal
clout. The District Magistrate was chagrined to swallow the
bitter pill that he was forced to acquire land even though
he was personally convinced there was no need but a
pretence- Therefore, disagreeing with the High Court, we are
of the opinion that the power to acquire land was exercised
for an extraneous and irrelevent purpose and it was
colourable exercise of power, namely, to satisfy the chagrin
and anguish of the Sammelan at the coming up of a cinema
theatre in the vicinity of its campus, which it vowed to
destroy. Therefore, the impugned notification has to be
declared illegal and invalid for this additional ground.
The validity of the impugned notification was also
challenged on the ground that even though the acquisition is
for the Sammelan, a company, the notification was issued
without first complying with the provisions of rule 4 of the
Land Acquisition (Companies) Rules, 1963. The High Court has
negatived this challenge. We must frankly confess that the
contention canvassed by Mr. Nariman in this behalf would
necessitate an indepth examination of the contention.
However, we consider it unnecessary in this case to
undertake this exer-
1020
cise because the judgment of the High Court is being upheld
for the additional reason that the acquisition in this case
was mala fide. Therefore, we do not propose to examine the
contention under this head.
For the reasons which appealed to the High Court and
for the additional reasons herein stated, the appeal
preferred by the Collector and the District Magistrate and
another fails and is dismissed while the appeal on the grant
of special leave to the petitioner is hereby partly allowed
to the extent herein indicated. Substantially, the Civil
Appeal No. 2458 of 1975 fails and is dismissed with no
orders as to costs.
S.R. Appeal dismissed and Petition allowed.
1021