ivil Appeal Nos
143 147 of 1970
From the Judgment and Order dated 17 2 1967 of the Calcutta High Court in Appeal from Original Order Nos
123 127 of 1966
D N Mukherjee and G section Chatterjee for the Appellants
section Balakrishnan and M K D Namboodry for the Respondent
B Sen and D N Mukherjee for the Intervener
The Judgment of the Court was delivered by KOSHAL J
By this judgment we shall dispose of Civil Appeals Nos
143 to 147 of 1970 all five of which have been filed by certificates granted under article 1331a of the Constitution by the High Court of Calcutta and are directed against its common judgment dated the 17th February 1967 accepting five Letters Patent Appeals and in reversal of the judgment of a learned Single Judge issuing a writ of mandamus directing the Land Acquisition Collector Burdwan and the State of West Bengal to cancel or withdraw a notification dated November 3 1961 and another containing a declaration dated June 20 1963 issued under sections 4 and 6 of the Land Acquisition Act hereinafter referred to as the Act respectively
575 2
The facts leading to the litigation covered by the appeals before us may be briefly stated
On February 12 1960 a notification later in this judgment called the first notification was issued by the Government of West Bengal under section 4 of the Act stating that a piece of land delineated in the plan available in the Office of the Special Land Acquisition Officer Burdwan as well as in that of the Director of Ms Sen Raleigh Industries India Ltd hereinafter referred to as the Company at Kanyapur in District Burdwan was likely to be needed for a public purpose not being a purpose of the Union namely for expansion of the factory of the Company and for construction of quarters for its workers and staff and for providing other amenities directly connected therewith such as school play grounds hospitals markets police out posts etc in the villages of Sarakdih Nadiha Garui Hatgaruy and Panchgachhia jurisdiction lists Nos 1 2 3 423 and 34 respectively Police Stations Asansol and Barabani Pargana Shergarh District Burdwan  at the expense of the Company
An area totalling 1720 acres and belonging to the respondents was included in the land covered by the notification
The respondents preferred objections to the proposed acquisition under section 5A of the Act to the effect that the land was not acquired for any public purpose that the real purpose was to benefit the Company and that the first notification was a fraudulent exercise of the power conferred by the Act on the State Government
A fresh notification second notification for short under section 4 of the Act was issued on November 3 1961 in respect of land measuring 14690 acres which was the same land as was covered by the first notification except for a small area
The second notification stated that the land was likely to be needed for a public purpose not being a purpose of the Union namely for industrial development at Asansol in the villages of Sarakdih Nadiha Garui Hatgaruy and Panchgachhia jurisdiction list Nos 1 2 3 78 and 34 respectively Police Stations Asansol and Barabani Pargana Shergarh District Burdwan at public expense The area of 1720 acres mentioned above was included in the land covered by the second notification also and the respondents filed objections under section 5A of the Act over again contending that although the ostensible purpose of the acquisition was a public purpose the land was really sought to be acquired for a private purpose ie for the benefit of the Company
The first notification was cancelled by an order dated the 26th April 1962 and on the 20th June 1963 the impugned notification 576 containing the declaration under section 6 of the Act the third notification for brevity was made
About three months later the respondents were served with notices under section 9 of the Act informing them that the State Government was taking steps to secure possession of the acquired lands and that they could submit their claims for compensation
Further representations were made by the respondents in an effort to have the acquisition proceedings dropped but without success and it was then that each one of them filed a petition under Article 226 of the Constitution asking for the issuance of a writ which was ultimately granted to them by the impugned judgment
The grounds of challenge taken in all the petitions were identical and were to the following effect a Full particulars of the public purpose for which the land was sought to be acquired were not stated in the second and third notifications
b Both those notifications were issued in colourable or malafide exercise of the power conferred by the Act
Before the learned Single Judge ground b was not pressed at the hearing
In relation to ground a he held that the industrial development of a particular area was in itself a public purpose and no further details of such purpose need be given in the notifications issued under the Act
Reliance in this connection was placed on Barkya Thakur vs State of Bombay1
It was further observed by the learned Single Judge that the proceedings under section 5A of the Act in relation to the impugned notifications had not been completed that it would be open to the respondents might possibly have another cause of action in case the supply of information was refused and that the petitions under Article 226 of the Constitution were therefore pre mature
All the five petitions were in the result dismissed by the learned Single Judge
In the Letters Patent Appeals decided by the impugned order the argument advanced on behalf of the respondents before us that the purpose of the acquisition as stated in the impugned notifications suffered from vagueness and that they had in consequence been deprived of the right to make effective objections under section 5A of the Act was held to be untenable
The Division Bench noticed that the learned Single Judge had erred in assuming that the objections filed by the respondents under the section last mentioned had not been decided by the time of his judgment
The ground that the real purpose of the proposed acquisition was not a public purpose at all but 577 was to benefit the Company and that the impugned notifications were therefore issued in colourable exercise of the powers conferred on the State Government by the Act was strongly put forward before the Division Bench and was considered by it at length
Relying upon Somawanti vs State of Punjab1 it held that although a declaration made under section 6 of the Act was final and conclusive not only in regard to the need for acquisition but also in regard to the purpose being a public purpose if it was so stated therein it was open to a person whose land was acquired to challenge it on the ground of colourable exercise of power
The Division Bench referred to the pleadings of the parties and took note of the fact that although the respondents had clearly taken up the position that the real purpose of the acquisition was not a public purpose but was to benefit the Company the Land Acquisition Collector had not in his affidavit taken any specific stand on the point but had only made an evasive denial of the plea put forward by the respondents and that while it was open to the State Government to produce documentary evidence showing that the purpose for which the land was acquired was a public purpose and not merely to benefit the Company it had failed to adopt that course
Refusing to hold however that there had been a colourable exercise of power on the part of the State Government the Division Bench held that the presumption that if such evidence had been produced it would be unfavourable to the State Government was available to the respondents in the present case
In this connection it further observed After all when the proposed acquisition is impugned as acquisition in colourable exercise of power and there is a specific allegation of the real purpose of the acquisition it is for the respondents to disclose except for good reasons the relevant material or information to enable the Court to pronounce on the matter and not to maintain a meaningful silence or indulge in equivocations and double standards rely on the doctrine of onus of proof and defect the course of justice
For the Court to permit this to be done with success will be to stultify itself abdicate its functions and abjure its duties
 and on this finding accepted all the five Letters Patent Appeals
After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established
Not only had their attention been drawn to the dictum in Somawanti s case supra but they 578 had in the impugned judgment extracted certain observations made therein by Mudholkar J to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception namely that the declaration could be challenged on the ground of malafide or colourable exercise of power
It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established
It further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception namely the respondents
While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained section K Mukherjee J who delivered the judgment on behalf of the Division Bench repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power
He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in that behalf was on them
In this situation we do not see how the respondents could be given any relief whatsoever
The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power
On the other hand
if it was not established that such exercise of power was so vitiated the declaration had to be taken at its word
On the findings of fact arrived at by the Division Bench therefore the Letters Patent Appeals merited nothing but dismissal
Learned counsel for the respondents urged that they were really entitled to a finding of malafides on the part of the State Government but we find ourselves wholly unable to agree with him
The burden as he concedes was squarely on the respondents to prove colourable exercise of power
In the face of the conclusive presumption which the Court has to raise under sub section 3 of section 6 of the Act about the nature of the purpose stated in the declaration being true
the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State
If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired the whole object of the provi 579 sion under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated
We cannot therefore hold merely on the strength of the absence of production of documentary evidence by the State that the onus which rested heavily on the respondents to prove malafides or colourable exercise of power on the part of the State Government has been discharged
Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area
On the other hand there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26 1967 for the grant of certificates under Article 133 of the Constitution
That averment reads That the Asansol Sub Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns viz
The Indian Iron  Steel Co Indian Aluminium Corporation and several collieries etc etc
It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries there are Hindustan Steel Durgapur Projects Graphite Company and a number of other very big industries This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise of power
Mr Balakrishnan learned counsel for the respondents raised a preliminary point to the effect that the second notification was void inasmuch as it had been issued while the first notification was still in force
We do not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High Court
In the result all the five appeals succeed and are accepted
The impugned judgment is set aside and the petitions made by the respondents to the High Court are dismissed
There will however be no order as to costs in any of the appeals
PBR Appeals allowed


Summary:
The State Government issued a notification under Section 4 of the Land Acquisition Act stating that the land referred to therein was needed for a public purpose namely for expansion of the factory of a Company at the expense of the company
On the respondents  objections that the purported purpose was not a public purpose in that the land was being acquired for the benefit of a company the State Government issued another notification in respect of the same land as also some more land stating that the land was needed for industrial development at public expense
Objections were again raised by the land owners that though ostensibly the purpose was a public purpose in truth it was a private purpose namely for the benefit of a company
In cancellation of the first notification the Government issued another notification under section 6
Dismissing the respondents  writ petitions under Article 226 a single Judge of the High Court held that the industrial development of a particular area was in itself a public purpose and no further details need be given in the notifications
On appeal a Division Bench of the High Court held that although a declaration under section 6 was final and conclusive as to the need for acquisition and as to the purpose being a public purpose the aggrieved party could challenge a declaration only on the ground of mala fides and colourable exercise of power and that in the instant case no such allegation had been made out
The appeals were however allowed on the ground that the State Government failed to produce evidence that the land was being acquired for a public purpose and not for the benefit of a company
Allowing the appeals
 HELD The High Court erred in accepting the appeals in view of its finding that mala fides or colourable exercise of power on the part of the State Government had not been established
It is well settled law that a declaration under section 6 of the Act shall be conclusive evidence that the land is needed for a public purpose the only exception to this being that the declaration was issued mala fide or in colourable exercise of power
The third notification 574 in this case had to be taken at its face value in so far as the purpose was concerned
577B 578B 2
The burden of proving mala fides or colourable exercise of power is on the party claiming the benefit of the exception namely the respondents
This burden could not be held to have been discharged by a mere allegation in that behalf
578H 3
If the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired is accepted the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated
It cannot therefore be held merely on the strength of the absence of production of documentary evidence by the State that the onus which rested heavily on the respondents to prove mala fides or colourable exercise of power on the part of the State Government has been discharged
578 H 579 A B 4
The respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was in correct for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by a company had been undertaken in the neighbourhood of the acquired area
There is a clear averment to the contrary by the State which was not controverted by the respondents and that cuts at the root of their plea of mala fides or colourable exercise of power
579 B C E