TMI Blog1985 (4) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.( [1971] 3 S.C.R. 840) The pre-existing Sammelan which was a registered society continued to function as such. It is for the benefit of the 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 'Sang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 Hindi Sangrahalaya of Hindi Sahitya Sammelan Prayag'. This notification was published in the U.P. Government Gazette on February 9, 1974.A not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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, 1975 was first published in the Official Gazette or after March 22, 1975 when the corrigendum was published in the Official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 interv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.( [1963] 2 S.C.R. 774) 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([1973] 1 S.C.R. 856), 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 Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, s. 4 of the Land Acquisition Act cannot be said to have been complied with. The publication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling the contention, that 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 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 object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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- 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 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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