PUBLIC PURPOSE DISCUSSED ELABORATELY WITH CITATIONS BY SUPREME COURT
CASE NO.: Appeal (civil) 6756 of 2003
PETITIONER: Daulat Singh Surana & Others
RESPONDENT: First Land Acquisition Collector & Others
DATE OF JUDGMENT: 13/11/2006
BENCH: JUSTICE ASHOK BHAN & JUSTICE DALVEER BHANDARI
Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp
BELOW STATED DECISIONS ARE RELIED BY PARTIES FOR DIFFERENT CONTENTIONS AND PLACED BEFORE HON'BLE COURT
1. Sri Nripati Ghoshal v. Premavati Kapur & Ors. [(1996) 5 SCC 386 (para 4)]
2. First Land Acquisition Collector & Ors. v. Nirodhi Prakash Gangoli & Anr. [(2002) 4 SCC 160 (para 6)]
3. Raghunath & Ors. v. State of Maharashtra & Ors. [AIR 1988 SC 1615 (para 9)]
4. Hindustan Oil Mills Ltd. & Anr. v. Special Deputy Collector (Land Acquisition) [AIR 1990 SC 731 (paras 8 & 9)]
5. State of West Bengal v. Bireshwas Dutta Estate (P) Ltd. [(2000) 1 Calcutta Law Times 165(HC) (para 37)].
6. Sailendra Narayana Bhanja Deo v. State of Orissa [AIR 1956 SC 346 (para 8)
Public Purpose has been defined in the Land Acquisition Act as under:-
"(f) the expression "public purpose" includes
(i) the provision of village-sites, or the extension, planned development or improvement of existing village sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part in lease, assignment or outright sale worth the object of securing further development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced to affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government or, with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office;
but does not include acquisition of land for Companies."
Public purpose will include a purpose in which the general interest of community as opposed to the interest of an individual is directly or indirectly involved. Individual interest must give way to public interest as far as public purpose in respect of acquisition of land is concerned.
In the Constitution of India, some guidelines can be traced as far as public purpose is concerned in Article 37 of the Constitution. The provisions contained in this Part (Directive Principles of the State Policy) shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country. It shall be the duty of the State to apply these principles in making laws.
According to Article 39 of the Constitution, the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The laws made for the purpose of securing the constitutional intention and spirits have to be for public purpose.
The term 'public purpose' has been defined in Black Law Dictionary (Fifth Edition) as under: "A public purpose or public business has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity and contentment of all the inhabitants or residents within a given political division, as, for example, a state, the sovereign powers of which are exercised to promote such public purpose or public business."
Public purpose is bound to vary with times and prevailing conditions in the community or locality and, therefore, the legislature has left it to the State (Government) to decide what is public purpose and also to declare the need of a given land for the purpose. The legislature has left the discretion to the Government regarding public purpose. The Government has the sole and absolute discretion in the matter.
In State of Bihar v. Kameshwar Singh reported in AIR 1952 SC 252 at page 259, a Constitution Bench of this Court considered the expression 'public purpose'. Mahajan, J. explained the expression 'public purpose' in the following manner:"The expression "public purpose" is not capable of a precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual."
In that case, S. R. Das, J. observed as under:"We must regard as public purpose all that will be calculated to promote the welfare of the people as envisaged in the Directive Principles of State policy whatever else that expression may mean."
Almost a century ago, in Hamabai v. Secretary of State reported in (1911) 13 Bom LR 1097, Batchelor, J. observed: "General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purpose' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned" received the approval of the Privy Council".
The definition of public purpose has been relied in number of subsequent decisions including the Constitution Bench judgment of this Court.The concept of public purpose was dealt in great detail in a leading American case Munn v. Illinois reported in (1877) 94 US 113: 24 L. Ed 77 and in some other cases. The doctrine declared is that property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large and from such clothing the right of the legislature is deduced to control the use of the property and to determine the compensation which the owner may receive for it. Field, J. observed as follows: "The declaration of the Constitution of 1870, that private buildings used for private purposes shall be deemed public institutions, does not make them so. The receipt and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language, though used in a constitutional convention, which can change a private business into a public one, or alter the character of the building in which the business is transacted."
In United Community Services v. Omaha Nat. Bank 77 N.W.2d 576, 585, 162 Neb. 786, the Court observed that a public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment, and the general welfare of all the inhabitants.
In People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 151 N.E.2d 311, 314, 14 III.2d 230 the Court observed that public purpose is not static concept, but is flexible, and is capable of expansion to meet conditions of complex society that were not within contemplation of framers of Constitution.
In Green v. Frazier, 176 N.W. 11, 17, 44 N.D. 395, the Court observed that a public purpose or public business has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within a given political division, as, for example, a state, the sovereign powers of which are exercised to promote such public purpose or public business.In the words of Lord Atkinson in Central Control Board v. Cannon Brewery Co. Ltd. (1919) A.C. 744, the power to take compulsorily raises by implication a right to payment.
The power of compulsory acquisition is described by the term "eminent domain". This term seems to have been originated in 1525 by Hugo Grotius, who wrote of this power in his work "De Jure Belli et Pacis" as follows : "The property of subjects is under the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the State is bound to make good the loss to those who lose their property." The Court observed that the requirement of public purpose is implicit in compulsory acquisition of property by the State or, what is called, the exercise of its power of 'Eminent Domain'.The Court further observed that the principle of compulsory acquisition of property, says Cooley (in Vol. II at p. 113, Constitutional Limitations) is founded on the superior claims of the whole community over an individual citizen but is applicable only in those cases where private property is wanted that public use, or demanded by the public welfare and that no instance is known in which it has been taken for the mere purpose of raising a revenue by sale or otherwise and the exercise of such a power is utterly destructive of individual right.
In The State of Bombay v. R.S. Nanji (1956) SCR 18, the Court observed that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established. Prima facie, the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose. In the said case, the Court observed that the phrase 'public purpose' includes a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directlyand vitally concerned. It is impossible to define precisely the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined to determine whether a public purpose has been established. In that case, the Court also referred to the following cases: The State of Bombay v. Bhanji Munji & Another (1955) 1 SCR 777 and The State of Bombay v. Ali Gulshan (1955) 2 SCR 867.
In Somawanti v. State of Punjab (1963) 2 SCR 774, the Court observed that public purpose must include an object in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Public purpose is bound to change with the times and the prevailing conditions in a given area and, therefore, it would not be a practical proposition even to attempt an extensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose.
The Constitution Bench of this Court in Somawanti (supra) observed that whether in a
particular case the purpose for which land was needed was a public purpose or not was for the Government to be satisfied about and the declaration of the Government would be final subject to one exception, namely that where there was a colourable exercise of the power the declarations would be open to challenge at the instance of the aggrieved party.
In Babu Barkya Thakur v. The State of Bombay & Others (1961) 1 SCR 128, the Court observed as under: "It will thus be noticed that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited."
The Constitution Bench in Satya Narain Singh v. District Engineer, P.W.D., Ballia and Anr. reported in AIR 1962 SC 1161 while describing public service observed :-"It is undoubtedly not easy to define what is "public service" and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public".
In Arnold Rodricks v. State of Maharashtra, reported in (1966) 3 SCR 885, while Justice Wanchoo and Justice Shah dissenting from judgment observed that there can be no doubt that the phrase 'public purpose' has not a static connotation, which is fixed for all times. There can also be no doubt that it is not possible to lay down a definition of what public purpose is, particularly as the concept of public purpose may change from time to time. There is no doubt however that public purpose involves in it an element of general interest of the community and whatever furthers the general interest must be regarded as a public purpose.
In Bhim Singhji v. Union of India (1981) 1 SCC 166, as per Sen, J., the concept of public purpose necessarily implies that it should be a law for the acquisition or requisition of property in the interest of the general public, and the purpose of such a law directly and vitally subserve public interest. Broadly speaking the expression 'public purpose' would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned.
In Laxman Rao Bapurao Jadhav v. State of Maharashtra reported in (1997) 3 SCC 493, this Court observed that "it is for the State Government to decide whether the land is needed or is likely to be needed for a public purpose and whether it is suitable or adaptable for the purpose for which the acquisition was sought to be made. The mere fact that the authorized officer was empowered to inspect and find out whether the land would be adaptable for the public purpose, it is needed or is likely to be needed, does not take away the power of the Government to take a decision ultimately".
In Scindia Employees' Union v. State of Maharashtra & Others reported in (1996) 10 SCC 150, this Court observed as under:"The very object of compulsory acquisition is in exercise of the power of eminent domain by the State against the wishes or willingness of the owner or person interested in the land. Therefore, so long as the public purpose subsists the exercise of the power of eminent domain cannot be questioned. Publication of declaration under Section 6 is conclusive evidence of public purpose. In view of the finding that it is a question of expansion of dockyard for defence purpose, it is a public purpose."
The right of eminent domain is the right of the State to reassert either temporarily or permanently its dominion over any piece of land on account of public exigency and for public good.
In the case of Coffee Board v. Commissioner of Commercial Taxes reported in (1988) 3 SCC 263, the Court observed that the eminent domain is an essential attribute of sovereignty of every State and authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owner's consent upon making just compensation.
The power of eminent domain is not exercisable in Anglo-Saxon jurisprudence except on condition of payment of compensation. In V.G. Ramachandran's Law of Land Acquisition and Compensation (Eighth Edition) by G.C. Mathur, it is stated (at page 1)-"In United States, the power of eminent domain is founded both on the Federal (Fifth Amendment) and on the State Constitutions. The scope of the doctrine in America stands considerably circumscribed by the State Constitutions. Now, the Constitution limits the power to taking for a public purpose and prohibits the exercise of power of eminent domain without just compensation. The process of exercising the power of eminent domain now is commonly referred to as 'condemnation' or 'expropriation'."
A seven-Judge Bench of this Court in The State of Karnataka & Another v. Shri Ranganatha Reddy & Another reported in (1977) 4 SCC 471, explained the expression 'public purpose' in the following words: "6. It is indisputable and beyond the pale of any controversy now as held by this Court in several decisions including the decision in the case of His Holiness Kesavananda Bharati Sripadagalaveru v. State of Kerala [1973] Supp. 1 S.C.R. 1 - popularly known as Fundamental Rights case - that any law providing for acquisition of property must be for a public purpose. Whether the law of acquisition is for public purpose or not is a justifiable issue. But the decision in that regard is not to be given by any detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble. The matter has to be examined with reference to the various provisions of the Act, its context and set up, the purpose of acquisition has to be culled out therefrom and then it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition.
