(Delivered by the Chief Justice.)
The two petitioners in this petition are the joint pattadars of S. No. 406 in the village of Kamalapuram, Hospet taluk, Bellary district. The said plot of land and other plots covered by S. No. 405 etc., belonging to the petitioners are being irrigated by water taken from sluice No. 68 in the Government Roya Channel through a main distributory channel which runs over some of the lands belonging to the petitioners as well as on poromboke lands. The third respondent is the pattadar of S. No. 404 lying to the north of S. No. 406. Though it is registered as dry, it can be cultivated with wet crops if there is adequate water supply. After obtaining reports from the Revenue Officers the Collector sanctioned a proposal for the acquisition of a portion of S. No. 406 belonging to the petitioners for excavating a field distributory channel to irrigate S. No. 404 belonging to the third respondent, provided the cost of acquisition was met by the third respondent. Accordingly a notification under S. 4(1) of the Land Acquisition Act was published in the Fort St. George Gazette of the 31st January 1951 wherein it was stated that an extent of 6 cents in S. No. 406 was needed for a public purpose, to wit, for excavating a field distributory channel to irrigate S. No. 404 from sluice No. 68 of the Roya Channel. After due enquiry under S. 5(a) of the Act a notification under S. 6 was published on the 24th April 1951. The petitioners challenge the validity of his acquisition on the ground that the purpose of the acquisition being solely for the benefit of a single individual, namely, the third respondent, cannot be said to be a public purpose. It must now be taken as well established that the power of the State to acquire property compulsorily is a power to acquire it only for a public purpose. Public purpose is a content of the power itself. Mahajan J., in the recent Supreme Court decision, State of Bihar v. Kameshwar Sing(1) observed thus:
“Public purpose is an essential ingredient in the very definition of the expression ‘eminent domain’ as given by Nichols and other constitutional writers…The exercise of the power to acquire compulsorily is conditional on the existence of a public purpose……Jurisdiction to acquire private property by legislation can only be exercised for a public purpose. It may be the purpose of the Union or the purpose of the State or any other public purpose. Private property cannot be acquired for a private purpose.”
The only question, therefore, is whether the purpose of the impugned acquisition can be said to be a public purpose. “There is no definition of “public purpose” either in the Constitution or any other relevant statute. Indeed, as pointed out by the Supreme Court, the expression “public purpose” is not capable of a precise definition and has not a rigid meaning.
“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” [State of Bihar v. Katneswhar Singh, ] at p. 576.
Mr. M.S Ramachandra Rao, learned counsel for the petitioners ‘contended that whatever test be applied it could never be said that when the purpose is ostensibly only to benefit one particular individual, it is a public purpose. In support of his contention he relied on two decisions of the Supreme Court of the United States. In Missouri Pacific Ry. Co. v. Nebraska Ex rel, Board of Transportation(2), the validity of an order of the Nebraska State Board of Transportation requiring a railroad company to surrender a part of its land to private persons for the purpose of building and maintaining their elevator upon it was questioned. The Court held that it was illegal as it would result in the taking of private property of a person without his consent for the private use of another. The principle of the decision is to be found in the following passage:
“This Court, confining itself to what in necessary for the decision of the case before it, is unanimously of opinion that the order in question, so far as it required the railroad corporation to surrender a part of its land to the petitioners, for the purpose of building and maintaining their elevator upon it, was in essence and effect, a taking of private property of railroad corporation, for the private use of the petitioners. The taking by a State of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the 14th Article of Amendment of the Constitution of the United States.”
It is important to notice that the order in question in that case was not and was not claimed to be a taking of private property for a public use under the right of eminent domain. The decision therefore is not of much assistance to us.
In Chicago St. Paul Minneapolis & Omaha Ry. Go. v. Holmberg, also there was no question of the State's exercise of its powers of eminent domain. A state railroad commission had, by an order, required, the construction at the expense of a railroad company and the landowner of an underpass connecting the farm lands on both sides of the railroad tracks solely for the convenience and benefit of the landowner in the use of his own property. The supreme Court held that it was invalid as taking property without due process of law.
Learned Counsel also referred us to the following passages from Willis book on Constitutional law:
“According to the newer viewpoint there is a public use if the thing taken is useful to the public…………Under this rule it is not necessary for the benefit to be for the whole community, but it must be for a considerable number. The fact that benefit also inures to a private individual is no objection.”
After referring to instances where it had been held that there was sufficient public use, the learned text writer goes on to say:
“In these cases there is not necessarily a general use by the public, but there is a general benefit to the public. Private enterprises are thus allowed to exercise the sovereign power of eminent domain, not because they are taking the property for their own use, but because in taking the property for their use they are benefiting the public. Of course, where the taking will benefit a private person alone, there is not a public use even in this newer sense.”
The learned Advocate General who appeared for the State invited our attention to two other decisions of the Supreme Court of the United States. The first one is Fallbrook Irrigation District v. Bradley. In this case an Act of California which provided for the acquisition of land whenever 50 landowners or a majority of them in a particular locality required it for construction of a water course was upheld as valid, though it was attacked on the ground that as the acquisition would only benefit particular landowners who get water from the channel and the public as such were not benefited there was no public user. The Court observed:
“To irregate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, nor confined to the landowners, or even to any one section of this State. The fact that the use of the water is limited to the landowners is not therefore a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute a public use.”
In Clark v. Nash(3), it was held that a statute of Utah under which an individual landowner could condemn a right of way across his neighbour's land for the enlargement of an irrigation ditch therein in order to enable him to obtain water from a stream in which he had an interest to irrigate his land which otherwise would remain absolutely valueless was valid. It is interesting to notice the reasoning of the Court in arriving at its decision. Peckham J. who delivered the opinion of the Court emphasised the fact that the validity of a statute permitting acquisition by an individual for the purpose of obtaining water for his land may depend upon a number of considerations relating to the situation of the State and its possibilities for land irrigation, and he observed:
“But we do not desire to be understood by this decision as approving of the broad proposition…………that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the State. We simply say that in this particular case, and upon the facts stated in the findings of the Court, and having reference to the conditions already stated, we are of opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is absolutely necessary to enable him to make any use whatever of his land and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the defendant in error, if any there are might share in the use of the water by themselves taking the same proceedings to obtain it, and we do not think it necessary, in order to hold that use to be a public one, that all should join in the same proceeding, or that a company should be formed to obtain the water which the individual landowner might then obtain his portion of from the company by paying the agreed price, or the price fixed by law.”
The learned Advocate General also cited to us passages from Nichols on Eminent Domain. The learned author attempts a definition of “public use” which is consistent with the weight of judicial authority. It is as follows:
“It is a public use for which property may be taken by eminent domain,
(1) to enable the United States or a State or one of its subdivisions or agencies to carry on its governmental functions, and to preserve the safety, health and comfort of the public whether or not the individual members of the public may make use of the property so taken, provided the taking is made by a public body:
(2) to serve the public with some necessity or convenience of life which is required by the public as Such and which cannot be readily furnished without the aid of some governmental power, whether or not the taking is made by a public body, provided the public may enjoy such service as of right;
(3) in certain special and peculiar cases sanctioned by ancient customs or justified by the requirements of unusual local conditions, to enable individuals to cultivate their land or carry on business in a manner in which it could not otherwise be done, if their success will indirectly enhance the public welfare, even if the taking is made by a private individual and the public has no right to service from him or enjoyment of the property taken.”
He points out that it is not the number of people who will participate in or benefit by the use for which the property is sought to be taken that determines whether the use is or is not public and also that merely because the whole or part of the expense is met by those benefited it should not be held that the use for which the property was taken was not public.
The following passage in Rottschaefer on Constitutional Law summarises the effect of the decisions on this aspect of the law of eminent domain:
“It is frequently sufficient if the use to which the private condemnor is to put the property is one of widespread general public benefit not involving any right on the part of the general public itself to use the property. The adoption of this general test has expanded the scope of valid public uses to include uses by private parties in purely private activities. The public benefit that has been relied upon to sustain such exercises of the power of eminent domain has usually consisted in that derived from the development of a State's important natural resources rendered possible by such exercises of that power. It is on that basis that one private person has been permitted to condemn land for the purpose of conveying water in ditches across that land in order to properly irrigate his own, and to condemn a right of way across another's land for an aerial bucket line necessary for the working of the condemnor's mine. The same considerations are frequently invoked in sustaining the condemnation of property required by drainage or irrigation districts for the accomplishment of their objectives, and the condemnation of land and water rights to be used for developing power for general public distribution.”
With this discussion of the material authorities on the question, let us examine the nature of the present acquisition. In the first place the extent of land acquired will vest in the State itself and will not be transferred to any private person. As mentioned in the notifications under Ss. 4 and 6 the land will be used for excavating a field distributory channel. The acquisition will not have the effect of transferring the property of one person to another person for his private use. What is acquired is acquired for the State.
The next question is, why does the State acquire it? It is here that a point is made of the fact that it is acquired for the private use of the third respondent. Prima facie this is so. But there are certain other facts which should also be borne in mind before we judge the real purpose of the acquisition.
It is now well established that one of the most important functions of the State in India is to provide for the irrigation of, lands capable of being cultivated with wet crops. With this end in view the State is bound to maintain works of irrigation already existing and also to construct new works of irrigation and expand the old works. The State has both the right and is under a duty to regulate the distribution of water in the interests of the public. The Government have the right to distribute the water from Government channels for the benefit of the public subject to the rights of landholders to continue to receive such supply as is sufficient for their accustomed requirements: [Vide Krishna Ayyan v. Venkatachalla Mudali, Sankaravadivelu Pillai v. Secretary of State for India in Council, and Sundararaja Aiyangar's Land Tenures in the Madras Presidency, 2nd Edn. page 181]. Any scheme under which the Government provide for the utilisation of the available water in Government sources of supply for the extension of cultivation will be a public purpose. The Government for this purpose has not only to construct and maintain the main sources of supply but also to provide for the distribution of the water to the various pieces of land which could be irrigated with the available water by means of distributory channels. Such channels must necessarily be of two kinds, namely, the major distributory channels and the smaller distributory channels which ultimately lead the water to the several fields. All these together constitute a net work of water supply for irrigation. An acquisition for carrying out any part of this scheme will certainly be an acquisition for a public purpose, which is also a State purpose. In the present case it appears from the correspondence that passed between the Revenue Officials before the acquisition was finally sanctioned that though immediately S. No. 404 alone would be benefited by the excavation of the small field channel in S. No. 406, in course of time the new channel would also serve to benefit other lands as well. Therefore the present acquisition must be held to be an acquisition for a public and State purpose, namely, extension of irrigation. The fact that now only one individual stands to benefit by the channel proposed to be excavated on the site acquired would not make the acquisition any the less an acquisition for a public purpose. It was observed by this Bench in a recent case that
“it is not necessary that it (property) should be available to the public as such. It might be in favour of individuals provided they are benefited not as individuals but in furtherance of a scheme of public utility.” [P. Thambiran Padayachi v. State Of Madras].
The present acquisition would fall within the category indicated in that decision.
As no other point was pressed upon us by learned Counsel for petitioners, the application fails and is dismissed with costs. Advocate's fee Rs. 100.
V.C.S