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  • P.N. Das
  • R.K. Goswami
  • Govt. Advocate (Jr.)
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  • Hon'ble Mr. Chief Justice Sarjoo Prasad
  • Hon'ble Mr. Justice Ram Labhaya
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Attorney(S)
  • P.N. Das
  • R.K. Goswami
  • Govt. Advocate (Jr.)
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  • Hon'ble Mr. Chief Justice Sarjoo Prasad
  • Hon'ble Mr. Justice Ram Labhaya
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Smart Summary

Judgment Summary: Ram Labhaya, J. — Maheswar Bharali v. State of Assam (challenge to Government Notification No. RA 234/53/16 dated 16-9-1955)

Factual and Procedural Background

Maheswar Bharali (petitioner) owned approximately 2 Kathas 10 Lechas of town land in Tihu town (periodic patta No. 36, dag No. 40). The managing body of the Tihu School applied to the Collector, Kamrup on 23-4-1953 for acquisition of land measuring about 2 K. 10 L., of which 2 K. 3 L. belonged to other persons. The School authorities were directed to deposit an estimated sum of Rs. 2,359 for payment of compensation; this amount was deposited on 25-9-1953.

The State Government published a notification under Section 4 of the Land Acquisition Act on 3-11-1953, inviting objections under S. 5A. The petitioner objected on 9-3-1954. The Collector conducted an inquiry and recommended acquisition of only 2 Kathas of the petitioner's land. The State allowed objections to that extent and issued declaration No. RA. 234/53/16 dated 16-9-1955 under Section 6 of the Land Acquisition Act, with a memorandum dated 3-10-1955 setting terms.

Pursuant to the declaration the Collector proceeded to take possession. The petitioner challenged the validity of the declaration on two primary grounds laid out in the petition (see Legal Issues Presented below). The petition was heard; affidavits and the report of the Additional Deputy Commissioner (B.M. Dam) were placed on record describing the condition and use of the land and recommending acquisition of 2 Kathas for the Tihu School. The Deputy Commissioner was directed not to commence proceedings until the estimated cost was deposited; the School had deposited an amount estimated as compensation and an affidavit from S. Das, Additional Deputy Commissioner of Gauhati, stated that the Tihu Town School is a Government-aided institution controlled by Government and that compensation would be paid from the Government treasury.

Legal Issues Presented

  1. Whether the acquisition (declaration No. RA 234/53/16 dated 16-9-1955 made under Section 6 of the Land Acquisition Act) was for a "public purpose".
  2. Whether the proviso to Section 6(1) — that the declaration shall not be made unless compensation is to be paid by a company or wholly or partly out of public revenues or some fund controlled by a local authority — was complied with, in view of the fact that the School authorities had deposited the estimated amount in the treasury and no part of compensation appeared to be intended to come from public revenues.

Arguments of the Parties

Petitioner's Arguments

  • The declaration was invalid because there was no public purpose justifying acquisition of the petitioner's land.
  • The proviso to Section 6(1) required that compensation be paid wholly or partly out of public revenues (or by a company or local authority); since the estimated amount had been deposited by the School authorities and no part of the compensation was to come from public revenues, the declaration did not comply with the proviso.

Respondent / State's Arguments (as represented by affidavits of S. Das and the Additional Deputy Commissioner)

  • The Tihu Town School is a Government-aided institution and therefore under Government control; acquisition for the School served a public purpose.
  • Procedural requirements under the Land Acquisition Act were complied with: notification under S. 4 was published, objections were invited and heard, and a report under S. 5A was considered before the declaration under S. 6 was issued.
  • The estimated compensation amount had been deposited in the treasury by the School authorities; the Deputy Commissioner would pay compensation from the Government treasury and whether the Government subsequently realised the amount from the School authorities was immaterial.
  • The factual report showed the land was used in an unsanitary, detrimental and obstructive manner (sheds let to blacksmiths and washermen, dumping of rubbish, human excreta near the school field), supporting acquisition of 2 Kathas for the School without undue hardship to the petitioner.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hamabai Framjee v. Secretary of State for India, 39 Bom 279; AIR 1914 PC 20 Interpretation of "public purpose": a purpose in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. The Court relied on this authority to support the proposition that establishment of a school is within the ambit of "public purpose".
Sheikh Samiruddin v. Sub-Divisional Officer, AIR 1954 Assam 81 That the declaration under Section 6 is conclusive evidence that the land is needed for a public purpose and is not open to challenge. The Court treated this decision as directly controlling and adhered to its view that the declaration is final; it afforded a complete answer to the petitioner's challenge on the public-purpose issue.
Suryanarayana v. Province of Madras, AIR 1945 Mad 394 (FB) Support for the proposition that a declaration under the statute is final and not open to judicial challenge. Relied upon (along with other cases) to bolster the conclusion that the Government's satisfaction under Section 6 is conclusive.
Brij Nath Sarin v. Uttar Pradesh Govt., AIR 1953 All 182 Authority used to support the finality of the declaration made under Section 6. Relied upon to hold that the declaration is final and cannot be questioned in court on the ground of absence of public purpose.
Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621; AIR 1950 SC 222 Consideration of whether the determination of "public purpose" is justiciable; majority held the statute intended the determination to be a subjective and administrative act. The Court observed that the majority decision does not support the petitioner's contention; rather, it supports the view that the determination is subjective and administrative in nature.
The Assam Co. Ltd. v. The State of Assam, AIR 1953 Assam 177 Held that a necessary condition of the validity of a law authorising compulsory acquisition is that it should have a public purpose, and that the question whether acquisition was for public purposes was justiciable (as applied in that case). The Court distinguished this case as not being of assistance to the petitioner because in the present proceedings the validity of the Land Acquisition Act or Section 6 itself was not in question; thus the decision did not support the petitioner's attack on the declaration.

Court's Reasoning and Analysis

The Court's analysis follows a stepwise application of statutory text, procedure and factual findings recorded in administrative reports:

  1. Statutory standard under Section 6(1): The Court identified that Section 6(1) permits the appropriate Government to issue a declaration when it is "satisfied" that land is needed for a public purpose, and that clause 3 makes such a declaration conclusive evidence that the land is needed for that purpose. The Court emphasised the subjective character of the Government's satisfaction under the provision.
  2. Procedural compliance: The Court examined whether procedural requirements under the Land Acquisition Act were followed. It noted that a notification under Section 4 was published, objections under S. 5A were invited and heard, and a report (Additional Deputy Commissioner B.M. Dam) was submitted and considered by the State Government before the declaration under Section 6 was issued. The Court found no procedural defect.
  3. Factual basis: The Court relied on the Additional Deputy Commissioner's report which described the land's use (tenanted to blacksmiths and washermen, unsanitary conditions, dumping of rubbish, presence of human excreta, unsightly shacks and obstruction from the road) and expressed the view that acquisition of 2 Kathas would be appropriate for the Tihu High School without causing undue hardship to the petitioner. The proximity and detrimental use of the land to school interests supported the Government's satisfaction that the land was needed.
  4. Meaning of "public purpose": Citing prior authorities (including Hamabai Framjee and decisions holding that the establishment of educational institutions serves the general interest of the community), the Court concluded that acquisition for the School falls within the ambit of "public purpose". The Court rejected the petitioner's contention (advanced by Mr. Das) that educational institution needs could not be regarded as public purposes.
  5. Finality of declaration: The Court treated the state's declaration under Section 6 as conclusive and not subject to judicial re-examination on the question whether the land is required for a public purpose, relying expressly on Sheikh Samiruddin and other cases (Suryanarayana, Brij Nath Sarin) holding that the declaration is final.
  6. Proviso to Section 6(1) (payment from public revenues): The proviso requires that a declaration under Section 6(1) shall not be made unless compensation is to be paid by a company or wholly or partly out of public revenues or some fund controlled by a local authority. The Court examined the facts: the declaration stated the land was required "to be taken by the State Government at public expense"; the affidavit by S. Das indicated that the School had deposited an amount estimated as compensation in the Gauhati treasury and that compensation would be paid from the Government treasury (with the question of Government realising the amount from the School being immaterial).
  7. Assessment of compliance with proviso: The Court observed that the deposited amount represented a Government estimate and that the quantum of compensation ultimately payable might differ. Because it could not be said at that stage whether the deposited amount (provided by the School) would be insufficient or whether the Government would in fact contribute from public revenues, the Court declined to find non-compliance with the proviso. In short, on the facts and the declaration language, the Court concluded non-compliance with the proviso was not established.
  8. Relief and jurisdictional note: The Court concluded that no relief could be granted under Article 226 of the Constitution on the grounds asserted by the petitioner, and therefore dismissed the petition and discharged the rule. The bench expressly adhered to earlier bench authority (AIR 1954 Assam 81) on the finality of the declaration.

Holding and Implications

Holding: The petition challenging the validity of Government Notification No. RA 234/53/16 dated 16-9-1955 was dismissed; the rule was discharged. The Court held that (a) the Government was entitled to be satisfied that the land was needed for a public purpose (the Tihu School), (b) the procedural requirements of the Land Acquisition Act had been complied with, (c) the proviso to Section 6(1) was not shown to have been breached on the facts before the Court.

Implications:

  • Direct effect on the parties: The declaration of acquisition stands and the Collector may proceed with acquisition subject to the statutory compensation process; the petitioner's challenge on the two stated grounds failed.
  • Relation to precedent: The Court expressly adhered to prior decisions (including AIR 1954 Assam 81) holding that a Section 6 declaration is conclusive evidence that land is needed for a public purpose and emphasised the subjective nature of the Government's satisfaction under the statute.
  • Broader implications: The opinion confines itself to application of established principles (as reflected in the authorities cited) to the facts; the decision rests on those authorities and the factual report and does not announce a new legal principle beyond those applications.

Disposition in the original opinion: "Petition dismissed." (Sarjoo Prosad, C.J. concurred.)

Show full summary ...

    Maheswar Bharali v. The State Of Assam And Another Opposite Party.

    Ram Labhaya, J.:— Maheswar Bharali, petitioner in this proceeding, has challenged the validity of the Government Notification No. RA 234/53/16 dated 16-9-1955 under the following circumstances. The petitioner owned about 2 Kathas 10 Lechas of town land covered by periodic patta No. 36, dag No. 40 of Tihu town in Kamrup District.

    2. The managing body of the Tihu School (which is on land contiguous to petitioner's land) applied to the Collector, Kamrup on 23-4-1953 for acquisition of land measuring about 2 K. 10 L. of which an area of 2 K. 3 L. belonged to persons other than the petitioner. They were directed to deposit a sum of Rs. 2359/- for payment of compensation to be awarded to the owners of the land sought to be acquired. This amount was deposited on 25-9-1953. Thereafter the State Government published its notification No. RA. 234/53/3 dated 3-11-1953 in the Assam Gazette, under the provisions of Section 4 of the Land Acquisition Act and invited objections, if any, under S. 5A from persons interested in the land. The petitioner objected to the acquisition of his land on 9-3-1954. An enquiry was made by the Collector of Kamrup and he submitted his report to the State Government recommending merely the acquisition of 2 Kathas of land belonging to the petitioner.

    3. Objections to the acquisition of the rest of the land had his support. On receipt of this report the State of Assam allowed objections to the extent recommended by the Collector and then made a declaration No. RA. 234/53/16 dated 16-9-1955 under Section 6 of the Land Acquisition Act and directed the Collector to proceed with the acquisition on terms set forth in the memorandum No. RA. 234/53/22 dated 3-10-1955.

    4. Pursuant to the declaration and the order of the State Government the Collector proceeded to take possession of the land. The validity of the declaration has been challenged on the following two grounds:— (1) There was no public purpose to justify the acquisition and (2) that in any case no part of the compensation to be awarded to the petitioner is to come from public revenues or from any funds controlled by a local authority.

    5. Annexure ‘D’ to the petition is the report dated 7-2-1955 made by Sri B.M Dam, Additional Deputy Commissioner, Kamrup to the Government on objections raised to the proposed acquisition after the publication of the notification under Section 4 of the Land Acquisition Act. In his view 2 Kathas of land from Dag No. 40 belonging to the petitioner could appropriately be acquired for the purposes of the school. He found that the land in question had been let out to some blacksmiths and washermen on ground rent.

    6. The tenants had built ugly shacks on the site. The occupants of these shacks were dumping rubbish and were also easing themselves on the school land towards the west, thereby rendering it unsanitary. He found human excreta at several places by the side of the school field. He was firmly of the opinion that 2 Kathas of the petitioner's land could be appropriately acquired for the Tihu High School, Page: 191without causing any undue hardship to the petitioner.

    7. By order dated 11th March the objections of the petitioner to the acquisition of these two Kathas were disallowed as stated above. On 3-10-1955 the Government accorded sanction to the estimate of compensation for the land to be acquired. It came to Rs. 969/8/-.

    8. The Deputy Commissioner was directed to proceed with the acquisition of the land covered by declaration dated 16-9-1955, but he was told not to commence the proceeding until the estimated cost had been deposited in full in the treasury by the School authorities. The payment for land was to be made and audited as though the land was being acquired for the Government.

    9. The material facts do not appear to be in dispute. An affidavit in opposition has been sworn by Shri S. Das, Additional Deputy Commissioner of Gauhati. He has averred that the Tihu Town School is a Government aided institution and therefore is controlled by Government.

    10. It was necessary to acquire the land in question for the purposes of the school and on the school committee depositing the amounts sufficient for the payment of compensation to the owners, the Deputy Commissioner published a preliminary notice under S. 4. After necessary inquiry on objections the final declaration was issued under s. 6. He further affirmed that acquisition of land for Tihu School was for a public purpose and as compensation was to be paid from the Government Treasury, it was immaterial whether the amount was realized by the Government from the institution or not.

    11. Section 6(1), Land Acquisition Act provides that

    “subject to the provisions of Part 1 of this Act when the appropriate Government is satisfied, after considering the report, if any, made under S. 5-A, sub-s. (2) that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of the Secretary to such Government or of some officer duly authorised to certify its orders.”

    12. There is a proviso to this clause which will be dealt with separately. Clause (1) of S. 6 authorises the Government to publish a declaration if it is satisfied after considering the report, if any, under S. 5-A that any particular land is needed for a public purpose or for a company.

    13. It cannot be disputed at all that the Government of Assam felt fully satisfied that the land was needed for a public purpose. This is clear from the language of the declaration. It is true that the declaration has not adopted the language of S. 6(1) of the Act. But the words used indicate in no uncertain manner the satisfaction of the State Government. It was stated that it appeared to the Government of Assam that land was required for a public purpose. This statement satisfies the requirements of S. 6(1).

    14. Before the publication of the declaration the procedural requirements of the Act were fully complied with. A notification under S. 4 was issued. Objections were invited. These were heard. A report giving reasons for the acquisition of the land in dispute was submitted to the State Government.

    15. The State Government on a consideration of) the report felt satisfied that acquisition of 2 Kathas of the land in dispute was necessary for a public purpose and then issued a declaration. The procedure followed is not open to any objection and in view of the facts revealed by the report of the Additional Deputy Commissioner, we do not think that the Government took any erroneous decision on the objections of the petitioner.

    16. The land is admittedly contiguous to the school land. It was being used in a manner which was obviously detrimental to school interests. No control could be exercised on its use, if the ownership did not vest in the school. The sheds are also unsightly and create a sort of an obstruction to the school from the road. Land also is needed for a play-ground.

    17. We feel satisfied that the land is needed for the purposes of the Tihu School. We also feel fully satisfied as the Government did that the land is needed for purposes which are public.

    18. Mr. Das endeavoured to argue that the needs of the School could not be regarded as a public purpose. Section 3(f), Land Acquisition Act describes what the expression “public purpose” includes. It includes the provision of village sites in districts in which the appropriate Government shall have declared by notification in the Official Gazette that it is customary for the Government to make such provision.

    19. No definition of the expression is given. The expression however has been interpreted to include

    “a purpose, i.e 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.”

    20. “Hamabai Framjee v. Secy. of State for India’, 39 Bom 279 : (AIR 1914 PC 20) (A). It is not necessary that the land should be made available to I the public at large. All that is necessary is that it I should serve the general interest of the community.

    21. A school certainly does serve such a purpose. Establishment of educational institutions has been held to be a public purpose in connection with charitable endowments. Mr. Das has not been able to give us any authority in support of his contention that the needs of educational institutions like a school, college or university cannot be regarded as public purposes, I entertain no doubt that the purpose for which the land in question is sought to be acquired is within the ambit of the expression “public purpose”.

    22. Section 6(1), Land Acquisition Act authorises the publication of a declaration under S. 6(1) if the Provincial Government is satisfied that the land is needed for a public purpose. The determination of the nature of the purpose is left to the Government. Clause 3 provides that the declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be.

    23. It follows that the satisfaction of the State Government is subjective. It is expressly made conclusive and therefore not open to objection. Clause 3 has been interpreted in ‘Sheikh Samiruddin v. Sub-Divisional Officer’, AIR 1954 Assam 81 (B) and it was held relying on ‘Suryanarayana v. Province of Madras’, AIR 1945 Mad 394 (FB) (C) and ‘Brij Nath Sarin v. Uttar Pradesh Govt.’, AIR 1953 All 182 (D) that the declaration was final and could not be questioned in a Court of law. The contention is covered by the decision of this Court which affords a complete answer to it.

    24. Mr. Das has argued relying on ‘Province of Bombay v. Khushaldas S. Advani’, 1950 SCR 621 : (AIR 1950 SC 222) (E) that the question whether the acquisition was for a public purpose was a justiciable issue. The majority decision in the case however lends no support to his contention. In fact it goes against him. It was held in that case by the majority of the learned Judges that the language of the statute — ‘if in the opinion of the Provincial Government’ — showed that the statute intended that the entire act of requisition including the determination of the nature of the purpose was a subjective and an administrative act.

    25. The words used in Section 6(1) of the Land Acquisition Act are “When the appropriate Government is satisfied”. The language is similar in effect. The determination of the need for a public purpose is left to the appropriate Government. The section contains an additional provision in cl. 3 and this provision makes the declaration of the Government under S. 6(1), conclusive. This puts the matter beyond the pale of controversy.

    26. The decision reported in ‘The Assam Co. Ltd. v. The State of Assam’, AIR 1953 Assam 177 (F), to which reference has also been made, is also of no assistance to the petitioner. That case is easily distinguishable. It was held therein that one necessary condition of the validity of a law authorising compulsory acquisition or taking of possession was that it should have a public purpose or purposes, and the question whether acquisition or requisition permitted, was for public purposes was held to be a justiciable matter. Here the validity of Land Acquisition Act or of the provision contained in S. 6 is not in question.

    27. Section 6 clearly provides that the appropriate Government should be satisfied that the particular land is needed for a public purpose. This decision also does not support the contention raised and the view which prevailed with this Court in ‘AIR 1954 Assam 81 (B)’, therefore must be adhered to. The declaration is not therefore invalid by reason of the absence of a public purpose as argued.

    28. The proviso to S. 6(1) enjoins that the declaration under S. 6(1) shall not be made unless the compensation to be awarded for such property is to be paid by a company or wholly or partly out of public revenues or some fund controlled or managed by local authority.

    29. The acquisition is not for a company or for any local authority.

    30. The acquisition is not for a company or for any local authority. It is therefore argued that compensation to be awarded must come wholly or partly out of public revenues. It is pointed out that no part of the compensation is intended to be paid out of the public revenues. The estimated amount has already been received from the School authorities. The declaration therefore does not comply with the requirements of the proviso.

    31. It appears that the State Government was alive to the requirements of the proviso. The declaration states in express terms that the land is required to be taken by the State Government at public expense and for a public purpose. The affidavit put in by Shri S. Das, Additional Deputy Commissioner does show that the declaration was issued after deposit of the money regarded as sufficient for payment of compensation to the owners, in the Gauhati treasury.

    32. It was also stated that compensation would be paid from Government treasury and it was immaterial whether the amount was realised by Government from the institution or not. Leaving out of consideration the contention of law raised in the affidavit, the statement of fact made is only to the effect that an amount sufficient for the payment of compensation has already been deposited in the treasury by the School authorities. This statement does not whittle down the effect of Government declaration of 16-9-1955.

    33. The Government there have stated that the acquisition is at public expense and for a public purpose. The amount deposited represents merely the Government estimate of the compensation. The petitioner is disputing the correctness of his estimate and the issue as to the quantum of compensation is to be determined by the Court in the future. It cannot be said whether the amount deposited would be sufficient for awarding such compensation as is found to be payable ultimately. It is therefore also not possible to say that the Government has not or will not contribute any portion of the compensation from public revenues as stated in the declaration and as required by the proviso. It may not therefore be found that there has been a non-compliance with the requirements of the proviso. No relief therefore can be granted to the petitioner under Article 226 of the Constitution in this proceeding. The petition is dismissed and the rule discharged.

    Sarjoo Prosad, C.J:— I agree and have nothing to add. Despite the strenuous efforts of the learned counsel I can find no illegality in the Land Acquisition proceedings complained of in the present case. I wish to emphasise that the points raised by him are in fact fully covered by the decision of this Bench in ‘AIR 1954 Assam 81 (B)’.

    34. Petition dismissed.

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    Comments

    Maheswar Bharali v. The State Of Assam And Another Opposite Party.
    (Apr 11, 1956)