Case: Smt. Somavanti And Others Vs. The State Of Punjab And Others(And Connected Petitions)

1. The petitioners who have acquired over six acres of land by purchase for Rs. 4,50,000 in February, 1961 under five sale deeds and one lease deed claim to have done so for the purpose of establishing a paper mill in collaboration with Messrs. R. S. Madhoram and Sons who had been granted a licence for the establishment of a paper plant in Ghaziabad in Uttar Pradesh. The aforesaid land is statute in the village Meola Maharajpur, Tehsil Ballabhgarh, District Gurgaon and abuts on the Mathura Road, and is only about 10 or 12 miles from New Delhi. Respondent No. 6, Air Conditioning Corporation (P) Ltd., is a private limited concern and holds a licence from the Government of India for starting a factory for the manufacture of various ranges of refrigeration compressors and ancillary equipment. We may mention here that initially this project was allotted to the State of West Bengal but at the request of the State of Punjab its location was shifted to the State of Punjab.2. The respondent No. 6 requested the State of Punjab for the allotment of an appropriate site for the location of the factory.The petitioners who have acquired over six acres of land by purchase for Rs. 4,50,000 in February, 1961 under five sale deeds and one lease deed claim to have done so for the purpose of establishing a paper mill in collaboration with Messrs. R. S. Madhoram and Sons who had been granted a licence for the establishment of a paper plant in Ghaziabad in Uttar Pradesh. The aforesaid land is statute in the village Meola Maharajpur, Tehsil Ballabhgarh, District Gurgaon and abuts on the Mathura Road, and is only about 10 or 12 miles from New Delhi. Respondent No. 6, Air Conditioning Corporation (P) Ltd., is a private limited concern and holds a licence from the Government of India for starting a factory for the manufacture of various ranges of refrigeration compressors and ancillary equipment. We may mention here that initially this project was allotted to the State of West Bengal but at the request of the State of Punjab its location was shifted to the State of Punjab.2. The respondent No. 6 requested the State of Punjab for the allotment of an appropriate site for the location of the factory.The petitioners contend that the respondent No. 6 being interested in acquiring land in the village Meola Maharajpur approached the State of Punjab in or about the month of March, 1961 for the purpose of acquiring land for their factory under the Land Acquisition Act, 1894 (thereinafter referred to as the Act). One of the petitioners having learnt of this made an application on March 23,1961 to the Deputy Commissioner, Gurgaon requesting him that none of the lands purchased by the petitioners should be acquired for the benefit of the respondent No. 6. Owners of adjacent lands Mr. Om Prakash, Mr. Ram Raghubir, Mr. Atmaram Chaddha and Mr. Hari Kishen who are petitioners in W. P. 247 and 24S of 1961 which were heard along with this petition made similar requests. The petitioners allege that they were assured by the Deputy Commissioner that their lands would not be acquired for the benefit of respondent No.6. Thereafter the respondent No. 6 purchased by private treaty a plot of land measuring approximately 70,000 sq. yards contiguous to the land owned by the petitioners on or about April 21, 1961.3. The petitioners grievance is that notwithstanding the assurances given to them by the Deputy Commissioner, Gurgaon, the Governor of Punjab, by notification dated August 25, 1961, under S. 4 of the Act declared that the lands of the petitioners in this petition as well as those of the petitioners in the other two writ petitions were likely to be needed by Government at public expense for a public purpose, namely, for setting up a factory for manufacturing various ranges of refrigeration compressors and ancillary equipment. It accordingly notified that the land in the locality described in the notification was required for the aforesaid purpose. Similarly it authorised the Sub-Divisional Officer and Land Acquisition Officer Palwal to enter upon and survey the land in the locality and to do all other acts required or permitted by S. 4 of the Act. It further directed that action under S. 17 of the Act shall be taken because there was urgency and also directed that the provisions of S. 5A shall not apply to the acquisition. On August 19, the Governor of Punjab made a notification under S. 6 of the Act to the effect that he was satisfied that the land specified in the notification was required by Government at public expense for public purpose, namely, for setting up a factory for the manufacture of refrigeration compressors and other ancillary equipment and declared that the aforesaid land was required for the aforesaid purposes. This declaration was made "to all whom it may concern" and the Sub-Divisional Officer, Palwal was directed to take all steps for the acquisition of this land. Finally the notification provided for the immediate taking of possession of the land under the provisions of S. 17(2)(c) of the Act. Both these notifications were published in the Punjab Government Gazette of August 25, 1961.4. The petitioners contend that these notifications and the land acquisition proccedings permitted to be taken under them violate their fundamental rights under Art. 19 (1) (f) and (g) to possess the said land and carry on their occupation, trade or business and that, therefore, they must be quashed.5. It is their contention that they have purchased this land bona fide for industrial purposes as land in the vicinity of this land is being acquired by industrialists for establishing various industries. The purpose is said to be the establishment of a paper manufacturing plant. According to them they have entered into an arrangement with Messrs. R. S. Madho Ram and Sons who hold industrial licence No. L/24(1)/N-60/62. The proposed industry, according to them, would employ about 200 people. The industry they wish to start is a new one so far as they are concerned, whereas, according to them, the respondent No. 6 is already engaged in refrigeration industry and as far as they know it has established a factory for manufacturing refrigeration equipment at Hyderabad in the State of Andhra Pradesh.6. It may be mentioned that some time after the notification was published, that is, on September 29, 1961, the Government of Punjab sanctioned the expense of Rs. 100 for the purpose of acquisition of this land. According to the petitioners this was an after thought and besides, a token contribution of this kind is not sufficient to show that the acquisition is being made partly at public expense.7. The petition was opposed not only by respondent No. 6 but also by the State of Punjab which is respondent No. 1 to the petition. The respondent No.1 denied that the petitioners had purchased the land for a bona fide industrial purpose and would in fact use it for such purpose. It also denied that any assurance was given to the petitioners that their lands would not be acquired. It admitted that the respondent No. 6 had made an application in December, 1960 for acquiring land for setting up its factory and that, therefore, the Punjab Government agreed to do the needful. According to respondent No. 1 the acquisition proceedings have been undertaken for a public purpose and at public expense as stated in the notification and that the State Government would make part contribution towards the payment of compensation of the land out of public revenues. In the circumstances it is contended that the petitioners would not be entitled to any relief whatsoever. They would of course get compensation for the land as determined by the Land Acquisition Officer.8. The action of the State Government is said to be legal and in accordance with the provisions of the law because what was done was permissible under Ss. 4 and 6 of the Act, that it was done bona fide, that part of the compensation would be paid out of the public revenues, that the declaration made by the Government is conclusive evidence under sub-sec. 23 of S. 6, that the land is needed for a public purpose, that the notifications were made on different dates though they were published in the same issue of the Gazette and are perfectly valid, that the land is not being acquired for a company but for a public purpose, that, therefore, the provisions of part VII of the Act are inapplicable and that the lands are lying vacant and their owners will be paid compensation. No question of depriving them of their fundamental rights under Art. 19(1)(f) and (g) or of violation of their right under Art. 14 therefore arises.9. According to respondent No. 1 it would be open to the petitioners to make their claim for compensation to the Land Acquisition Officer for such loss as the acquisition would entail on them. It also stated that as the land purchased by the respondent No. 6 through private negotiation has no access to the main road and as the land is inadequate to meet the minimum essential requirements the acquisition of the lands in question became necessary.10. On behalf of the respondent No. 6 it is stated that the need for a factory like the one in its contemplation is acutely felt in India inasmuch as manufacture of compressors and the components of big and small air-conditioners, refrigerators, water coolers and cold storage cabinets is not being carried out anywhere in the country so far. The import of these goods naturally drains away a considerable amount of foreign exchange. It was, therefore, felt that by starting manufacture of these articles in our country not only will foreign exchange be saved, but some foreign exchange will eventually be earned by the export of manufactured goods. They further contend that the purpose for which the factory is being set up must be regarded as a public purpose because inter alia it is intended by manufacturing the aforesaid goods, to cater to the needs of the public at large. It is in view of these circumstances that the Government of India, accepting the recommendation made in this regard by the licensing committee under the Industries Development and Regulation Act, 1951, issued a licence in its favour on April 8, 1951. It then pointed out that it has secured the collaboration in this project of a well- known American Company named Borg-Warner International Corporation of Chicago, which is the biggest manufacturers of air conditioning plants and equipment in the world, and that the collaboration agreement has been approved by the Government of India in the Ministry of Commerce. Its grievance is that this agreement has not been implemented so far because it has not been able to get the land for constructing the building in which the necessary machinery and implements could he installed. Finally it says that originally the licence was issued for setting up a factory in the State of West Bengal and that it was at the instance of the Government of Punjab that the Central Government permitted the location of the factory to be shifted from West Bengal to Punjab. According to it once the factory gets going it is likely to employ at least 1,000 workers.11. It is not necessary to refer to the other affidavits and the rejoinder affidavits except to some portions of the additional affidavit filed by Mr. M. R. Bhagat, Under Secretary on behalf of the respondent No. 1. We are referring only to those portions which were relied on during the arguments before us. In that affidavit it is denied that any license had been granted to Messrs. R. S. Madho Ram and Sons for the establishment of a paper plant in the Punjab. According to respondent No. 1 Messrs. R. S. Madho Ram and Sons were granted a licence on August 17, 1960 for the establishment of an industrial undertaking, in Ghaziabad (U.P.) for the manufacture of writing and printing paper and pulp. It further stated that even this licence has been cancelled by the Government of India by their letter dated January 31, 1962 since the said licensee did not take any effective steps to establish the same. It then stated that the Air Conditioning Corporation which was incorporated as a private limited company has since, with the permission of the Central Government, been converted into a public limited company with the name and style of "York India Ltd.", and that the company has been granted a licence to manufacture refrigeration equipment by the Industrial Licensing Committee. There is an agreement between York India Ltd., and Messrs. York Corporation, U. S. A. a subsidiary of Borg-Warner of the U. S. A. whereunder the latter have undertaken to give all technical assistance and technical training to the Indian personnel as also to contribute 50% of the initial investment in the undertaking. The respondent No. 6 expects to manufacture 70% of the equipment in the very first year and cent per cent by the end of 1966. It further stated that the foreign collaborators also have agreed to sell the products of the firm outside India at prices and on terms and conditions most favourable to the Indian firm, thereby enabling it to obtain access to the foreign market. The foreign collaborator would make available to the Indian personnel the technical know-how and other information necessary for the manufacture of refrigeration materials and that such assistance will itself be very valuable. It denied that the respondent no. 6 has established a factory similar to the one now intended to be established in Hyderabad as alleged by the petitioners. It is admitted that licences have been granted to two other concerns in India for the manufacture of similar equipment. Neither of those licensees has actually started production, at any rate so far, and, therefore, it is not correct to say that similar equipment is already being manufactured in India. Then it stated "the products that are to be manufactured by the respondent till now were being imported into India from foreign countries and goods worth about R. 3,83,70.000 in 1960 and for the first ten months in 1961 Rs.. 3,55,50,000 were imported by the various licensees holding import licences." It also stated that the respondent No. 6 was granted licence to establish a factory in West Bengal but since no one had been granted a licence to establish a factory of this kind in the Punjab its licence was transferred to Punjab. The proposed factory would employ a large number of persons and thus help to solve to some extent the existing problem of unemployment in Punjab. Finally it stated that the establishment of the factory as such is in furtherance of the industrial development of the Punjab State and is, therefore, for a public purpose.About six acres of land purchased by the petitioners in Writ Petition No. 246 of 1961 for a sum of Rs. 460,000 (sic) in February 1961 is situate in villags Meola Maharajpur, Tehsil Balabhagarh, District Gargaon. On August 25, 1961 the Governor of Punjab published a notification dated August 18, 1961 in the Official Gazette under S. 4 of the Land Acquisition Act, 1894, hereinafter called the Act, to the effect that the said land was likely to be needed by the Government at public expense for a purpose, namely, for setting up a factory for manufacturing various ranges of refrigeration compressors and ancillary equipment. Under S. 17 of the Act the appropriate Government directed that the provisions of S. 5A will not apply to the said acquisition. On the same day, another notification under S. 6 of the Act dated August 19, 1961 was published to the effect that the Governor of Punjab was satisfied that the land specified therein was required by the Government at public expense for the said purpose. On September 29, 1961, the Government of Punjab sanctioned an expense of Rs. 100 for the purpose of acquisition of the said land. The validity of the said notification is questioned or various grounds

Reasoning:
We may deal with the third point raised by Mr. Pathak first, that is regarding non-compliance of provisions of Part VII. It is common ground that those provisions were not complied with. The reason for that is, that according to the respondents the acquisition is not for a company but for a public purpose, partly at public expense. Indeed, the respondents at no stage have relied on the provisions of Part VII of the Act and, therefore, the main question to be considered is whether the acquisition is for a public purpose partly at public expense or not. If it is not so, then, of course, the petitions must succeed. Therefore, it is the first two contentions raised by Mr. Pathak which primarily need our consideration.In our opinion the question whether any of the aforesaid purposes falls within the expression public purpose would arise for consideration only if the declaration of the Government is not conclusive or if the action of the Government is colourable. If, as contended by the learned Advocate-General, sub-s.(3) of S. 6 concludes the matter - and the validity of this provision is not challenged - and the action of the Government is not colourable the other question would not arise for consideration.A distinction is sought to be made between, "conclusive proof" and "conclusive evidence" and it is contended that where a law declares that a fact shall be conclusive proof of another, the Court is precluded from considering other evidence once such fact is established. Therefore, where the law makes a fact conclusive proof of another the fact stands proved and the Court must proceed on that basis. But , the argument proceeds, where the law does not go that far and makes a fact only "conclusive evidence" as to the existence of another fact, other evidence as to the existence of the other fact is not shut out. In support of the argument reliance is placed on S. 4 of the Evidence Act which in its third paragraph defines conclusive proof as followsone fact is declared by this Act to be conclusive proof of another the Court, shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disprovingparagraph thus provides that further evidence is barred where, under the Evidence Act, one fact is regarded as proof of another. But it says nothing about what other laws may provide. There are a number of laws which make certain facts conclusive evidence of other facts: (See Companies Act, 1956, S. 132; the Indian Succession Act, 1925, S. 381; Christian Marriages Act, 1872 S. 61; Madras Revenue Act, 1869, S. 38 Oaths Act, 1973, S. 11) The question is whether such provision also bars other evidence after that which is conclusive evidence isevidence means and includes all statements which the Court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can be proved either by that evidence or by some other evidence which the Court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced the Court has no option but to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression conclusive proof where the object is to make a fact non-justiciable. But the legislature may use some other expression such as-conclusive evidence for achieving the same result. There is thus no difference between the effect of the expression conclusive evidence from that of conclusive proof, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.The argument, however, is that the protection which the Act enjoys is only to this extent that even though any of its provisions be in conflict with Art. 31(2) the Act cannot be challenged on that ground; the protection does not however extend to other provisions of Part III of the Constitution, such as Art. l9(1)(f).As we understand the decision in Bhanji Munji case, 1955-1 SCR 777  ; ((S) AIR 1955 SC 41  ), what this Court has held is that for a right under Art. 19(1)(f) to hold property to be available to a person, he must have the property with respect to which he can assert such right. If the right to the possession of the property is taken away by a law protected by Art. 31(5)(a), Art. 11(1)(f) is not attracted. That is the decision of this Court and it has been followed in two other cases. All the decisions are binding upon us. It is contended that none of the decisions has considered the argument advanced before us that a law may be protected from an attack under Art. 31(2) but it will still be invalid under Art. 13(2) if the restriction placed by it on the right of a person to hold property is unreasonable. In other words, for the law before us to be regarded as valid it must also satisfy the requirements of Art. 19(5) and that only thereafter can the property of a person be taken away. It is sufficient to say that though this Court may not have pronounced on this aspect of the matter we are bound by the actual decisions which categorically negative an attack based on the right guaranteed by Art. 19(l)(f).The binding effect of a decision does not depend up on whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. That point has been specifically decided in the three decisions referred to above.23. We, therefore, hold that since the Act provides that the declaration made by the State that a particular land is needed for a public purpose shall be conclusive evidence of the fact that it is so needed the Constitution is not thereby infringed.It is clear from these provisions that the object of the law is to empower Government to acquire land only for a public purpose or for a company, and where it is for a company the acquisition is subject to the provisions of Part VII. As has been pointed out by this Court in R. L. Arora v. State of (Uttar Pradesh, C. A. No.446 of 1959, D/-15 -12-1961: (AIR 1962 SC 764  ), the acquisition for a company contemplated by Part VII is confined only to cases where the Government is satisfied that the purpose of obtaining the land is erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith or for the construction of some work which is likely to prove directly useful to the public.26. After a notification under sub-s. (1) of S. 4 is published a person interested in the land is entitled to object to the acquisition. That objection may be raised on any ground as for instance that the land is not in fact needed at all for any purpose or that it is not suitable for the purpose for which it is sought to be acquired or that the purpose is not a public purpose or what is said to be a company is not a company and so on. Finality is attached to the decision of the Government which ultimately has to decide such objections. Then follows S.6 which enables the Government to make a declaration provided that it is satisfied that a particular land is needed for a public purpose or for a company. No doubt, it is open to-the State Government in an emergency, by exercising its powers under sub-s. (4) of S. 17 to say that the provisions of S. 5A would not apply. But for construing the provisions of S. 6 it would be relevant to bear in mind that section. The scheme of thee act is that normally the Provisions of S. 5A have to be complied with. Where, in pursuance of the provisions objections are lodged these objections will have to be decided by the Government. Fox deciding them the Government will have before if the Collector "proceeding. It would therefore be clear that the declaration that a Particular land is needed for a public purpose or for a company is not to be made by the Government arbitrarily, but on the basis of material placed before it by the Collector. The provisions of sub-s. (2) of S.5A make the decision of the Government on the objections final while those of sub-s. (1) of S.6 enable the Government to arrive at its satisfaction. Sub-section (3) of S.6 goes further and says that such a declaration shall be conclusive evidence that the land is needed for a public purpose or a for a company.27.It is however argued by learned counsel that the conclusiveness or finality attached to the declaration of Government is only as regards the fact that the land is "needed" but not as regards the question that the purpose for which the land is needed is in fact a public purpose or what is said to be a company is really a company.Sub-section (1), does not effect a dichotomy between "need" and "public purpose company". There is no justification for making such a dichotomy. By making it, not only will the language of the section be strained but the purpose of the law will be stultified. The expression must be regarded as one whole and the declaration held to be with respect to both the elements of the expression.28. The Government has to be satisfied about both the elements contained in the expression "needed for a public purpose or a company."Where it is so satisfied, it is entitled to make a declaration. Once such a declaration is made sub-s. (3), invests it with conclusiveness. That conclusiveness is not merely regarding the fact that the Government is satisfied but also with regard to the question that the land is needed for a public purpose or is needed for company, as the case may be. Then again the conclusiveness must necessarily attach not merely to the need but also to the question whether the purpose is a public purpose or what is said to be a company is a company. There can be no need" in the abstract. It must be a need for a public purpose or for a company. As we have already stated the law permits acquisition only when there is a public purpose or when the land is needed for a company for the purposes set out in S.40 of the Act. Therefore, it would be unreasonable to say that the conclusiveness would attach only to a need and not to the fact that that need is for a public purpose or for a company. No land can be acquired under the Act unless the need is for one or the other purpose and, therefore it will be futile to give conclusiveness merely to the question of public purpose or the purpose of a company. Upon the plain language of the relevant provisions it is not possible to accept the contention put forward by learned counsels.It was no doubt argued before the Court that the declaration made by the Government under S. 6(1) that the land was needed for a company is conclusive and, therefore, the question as to the actual purpose of the acquisition is not justiciable. This Court pointed out that S. 6(3) makes the declaration under S. 6(1) conclusive evidence of the fact that the land is needed for a public purpose or for a company and that as the declaration stated that the land was needed for a company and that fact was not disputed by the parties, the provisions of S. 6(3) were of no assistance. We may point out that even according to that decision conclusiveness attaches itself to the declaration that the land is required for a public purpose and, therefore, instead of assisting the petitioners it in fact assists the respondents. No doubt, in so far as an acquisition for a company is concerned Part VII requires that before a declaration under S. 6(1) is made the Government should be satisfied that the land is required for one of the two purposes set out in S. 40(1) of the Act. The Government can consent to the making of a declaration under S. 6(1) after it is satisfied under S. 41 about the fact that the land is required for a company for the purposes set out in cls. (a) and (b) of that section. But the declaration made thereafter is confined only to one matter and that is that the land is required for a company and nothing more. The question whether in fact the land is required by the company for the purposes set out in cls. (a) and (b) of S. 40(1) is not germane to the declaration. No doubt the power of the Governments to make a declaration with respect to an acquisition for a company is circumscribed and therefore, the Government is expected to exercise it with due regard to the limitation placed upon it. But it does not follow that sub-s. (3) of S. 6 makes the declaration conclusive evidence not only of the fact that the land is required for a company but also of the fact that the land is required by a company for a purpose specified in S. 40(1) of the Act. The observations made by Wanchoo J., therefore, do not assist the petitioners.No doubt in these decisions this Court stated what, broadly speaking, the expression Public purpose means. But in neither case the question arose for consideration as to whether the meaning to be given to the expression public purpose is justiciable.36. Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will bea single decision was however, brought to our notice in which it has been held that the question as to what is a public purpose or whether it exists can be enquired into by the Court even in the absence of colourable exercise of power, because S. 6(3) has become void under Art. 13(2) of the Constitution.38. It was next contended that sub-sec. (3) of S. 6 cannot stand in the way in a proceeding under Art. 226 or under Art. 32 of the Constitution and in support of this argument reliance was placed upon the decision in Chudalamuthu Pillai v. State, ILR (1952) Trav-Co. 488: (AIR 1952 Trav-Co. 522). Maharaja Luchmeswar Singh v. Chairman of the Darbhanga Municipality, 17 Ind App 90 (PC), Rajendra Kumar v. Govt. of West Bengal, AIR 1952 Cal 573  , Arjan Singh v. State of Punjab, ILR (1958) Punj 1451: (AIR 1959 Punj 588). In the first mentioned case it was contended that the order was actuated by mala fides and also that there were various irregularities in the proceedings. As we have already indicated, if the declaration is vitiated by fraud, then the declaration is itself bad and what is bad cannot be protected by sub-sec. (3) of S. 6. In the next case the act of the Court of Wards in handing over the wards lands for a nominal consideration for a public purpose was challenged in a suit. The challenge was upheld by the Privy Council on the ground that lawful possession could only be taken by the State in strict compliance with the provisions of the Land Acquisition Act. The question raised here did not arise for consideration in that case. In the other two cases the declaration was challenged under Art. 226 and in both the cases the challenge failed. In the first of the two latter mentioned cases it failed on the ground that there was no fraud and in the second on the ground that the provisions of sub-sec.(3) of S. 6. precluded the court from challenging the validity of the declaration. None of these cases, therefore supports the contention of the petitioners.39. Moreover we are not concerned here with the powers of the High Court under Art. 226 but with those of this Court. It is said however that the bar created by S. 6(3) would not stand in the way of this Court while dealing with a petition under Art. 32 and, therefore, it is open to us to ascertain whether an acquisition is for a public purpose or not. While it is true that the powers of the Court cannot be taken away by any law which may hereafter be made unless the Constitution itself is amended we are here faced with a provision of law which is a pre-constitution law and which is protected by the Constitution to the extent indicated in Art. 31(5) (a) and an attack on its validity on the ground that it infringes the right guaranteed by Art. 19 (1) (f) has failed. Therefore it is a good and valid law and the restriction placed by it on the powers of this Court under Art. 32 must operate.40. Though we are of the opinion that the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose we must emphasise that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may well arise whether in making the declaration there has been on the part of the Government a fraud on the power conferred upon it by the Act. In other word the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, and, therefore the declaration is open to challenge at the instance of the party aggrieved. To such a declaration the protection of S. 6 (8) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as S. 6(8).d having been made the subject of compulsory purchase the owner brought an action in which, among other things, ca declaration was added that the order wasmade confirmed wrongfully and in bad faith in procuring its order and confirmation. The House of Lords held by majority that the action could not proceed except against the clerk for damages because the plain prohibition in paragraph 16 precluded the Court challenging the validity of the order. They also held that paragraph 15 gave no opportunity to a person aggrieved to question the validity of a compulsory purchase order on the ground that it was made or confirmed in bad faith. As we have already said the condition for the exercise of the power by the State Government is the existence of a public purpose (or the purpose of a company) and if the Government makes a declaration under S. 6(1) in fraud of the powers conferred upon it by that section the satisfaction on which the declaration is made is not about a matter with respect to which it is required to be satisfied by the provision and therefore, its declaration is open to challenge as being without any legal effect. We are not prepared to go as far as the House of Lords in the above case.It is no doubt true that the financial sanction for the contribution of Rs. 100 as part of the expenses for acquisition was accorded by the Finance Department on September 29, 1961. No doubt also that a day prior to the according of sanction this petition had been admitted by this Court and a stay order issued. But from these two circumstances, it would not be reasonable to draw the inference that the declaration made by the Government was a colourable exercise of its power. The provisions of sub-sec. (1) of S. 6, however, do not require that the notification made thereunder must set out the fact that the Government had decided to pay a part of the expenses of acquisition or even to state the extent to which the Government is prepared to make a part contribution to the cost ofis sufficient to say that the absence of a provision in the budget in respect of the cost of acquisition, whole or part, cannot affect the validity of the declaration and that if Government does spend some money without allotment in the budget, its expenditure may perhaps entitle the Accountant General to raise an audit objection or may enable the Public Accounts Committee of the State Legislature to criticise the Government. But that is all. Again, where the expenditure is of a small amount like Rs. 100 it may be possible for the Government to make payment form Contingencies and thus avoid objections of this kind. Whatever that may be, these are not circumstances which would suffice to show that the declaration wasstatement of the learned Advocate-General was not challenged on behalf of the petitioner. Moreover the declaration under sub-sec. (1) 6 is clear on the point that the land is being acquired at public expense, and the provisions of sub-sec. (3) of S. 6 preclude a Court from going behind such a declaration unless it is shown that the Government has in fact decided not to contribute any funds out of the public revenues for that purpose. For, if the Government had in fact taken a decision of that kind then the exercise of the power to make an acquisition would be open to challenge as being colourable.It is clear, therefore, that the analogy of Chattertons case, (1878) 3 AC 483, cannot possibly apply to a case under the Act. As was pointed out in Senga Naickens case, ILR 50 Mad 308  : (AIR 1927 Madboth of the litigants had derived their compositions from a common source and it stands to reason that before you can compel a man to pay damages for stealing the product of your brain, time and labour, you must be able to point out that any resemblance between his production and yours is not merely accidental but is a designed theft of the product of your brain. Otherwise...................one might go to the absurdity of objecting to a man using the same words though in a different collocation as you havethese observations we agree.51. Now, as regards Maharaja Luchmeswar Singhs case, 17 Ind App 90 (PC). The facts were these. The plaintiffs land was under the management of the Court of Wards during his minority. A notification under S. 6(1) of the Land Acquisition Act, 1870 was made with respect to certain land belonging to the plaintiff for being acquired by the Government at the expense of the Darbhanga Municipality for a public purpose, that is, construction of a public ghat or landing place in the town of Darbhanga. But instead of complying- with the provisions of the Land Acquisition Act and inquiring into the value of the land, the Collector who was the Chairman of the Municipality and also representative of the Court of Wards took possession of the land and handed it over to the municipality. The compensation paid to the plaintiff was Rs. 1/- an amount agreed to by the Manager. The plaintiff, after attaining majority, instituted a suit for possession of land and for mesne profits. His suit was dismissed by the courts below and he preferred an appeal before the Judicial Committee of the Privy Council. Allowing the appeal, their Lordshipsoffer and acceptance of the rupee was a colourable attempt to obtain a title under the Land Acquisition Act without paying for thethis case could at all have any bearing upon the point which arose for consideration in Ponnaias case, AIR 1926 Mad 1099  , we fail to see. This case is also relied on before us on behalf of the petitioners and we have referred to it earlier on this judgment. It has nothing whatsoever to do with the question of contribution by the State towards the cost of acquisition.52. We would like to add that the view taken in Senga Naickens case ILR 50 Mad 308  : (AIR 1927 Mad 245  ), has been followed by the various High Courts in India. On the basis of the correctness of that view the State Governments have been acquiring private properties all over the country by contributing only token amounts towards the cost of acquisition. Titles to many such properties would be unsettled if we were now to take the view that partly at public expense means substantially at public expense. Therefore, on the principle of stare decisis the view taken in Senga Naickens case, ILR 50 Mad 308  : (AIR 1927 Mad 245  ), should not be disturbed. We would, however, guard ourselves against being understood to say that a token contribution by the State towards the cost of acquisition will be sufficient compliance with the law in each and every case. Whether such contribution meets the requirements of the law would depend upon the facts of every case. Indeed the fact that the States contribution is nominal may well indicate, in particular circumstances, that the action of the State was a colourable exercise of power. In our opinion part does not necessarily mean a substantial part and that it will be open to the Court in every case which comes up before it to examine whether the contribution made by the State satisfies the requirement of the law. In this case we are satisfied that it satisfies the requirement of law.What is next to be considered is whether the acquisition was only for a company because the compensation was to come almost entirely out of its coffers and, therefore, it was in reality for a private purpose as opposed to publicthe point it is said that the establishment of a factory for manufacturing refrigeration equipment is nothing but an ordinary commercial venture and can by no stretch of imagination fall within the well-accepted meaning of the expression public purpose, that even if it were to fall within that expression the factory is to be established not by the Government, nor by Government participation but solely by the respondent No. 6, a public limited concern and that, therefore, the concern could acquire land for such a purpose only after complying with the provisions of Part VII and that the use of the provisions of S. 6(1) is merely a colourable device to enable the respondent No. 6 to do something, which, under terms of S. 6(1), could not bethe notification under S. 6(1) it has been stated that the land is being acquired for a public purpose, namely, for setting up a factory for manufacturing various ranges of refrigeration compressors and ancillary equipment. It was vehemently argued before us that manufacture of refrigeration equipment cannot be regarded as beneficial to the community in the real sense of the word and that such equipment will at the most enable articles of luxury to be produced. But the State Government has taken the view that the manufacture of these articles is for the benefit of the community. No materials have been placed before us from which we could infer that the view of the Government is perverse or that its action based on it constitutes a fraud on its power to acquire land or is a colourable exercise by it of such power.54. Further, the notification itself sets out the purpose for which the land is being acquired. That purpose, if we may recall, is to set up a factory for the manufacture of refrigeration compressors and ancillary equipment. The importance of this undertaking to a State such as the Punjab which has a surplus of fruit, dairy products etc., the general effect of the establishment of this factory on foreign exchange resources, spread of education, relieving the pressure on unemployment etc., have been set out in the affidavit of the respondent and their substance appears in the earlier part of this judgment. The affidavits have not been controverted and we have, therefore no hesitation in acting upon them.55. On the face of it, therefore, bringing into existence a factory of this kind would be a purpose beneficial to the public even though that is a private venture. As has already been pointed out, facilities for providing refrigeration are regarded in modern times as public utilities. All the greater reason, therefore, that a factory which manufactures essential equipment for establishing public utilities must be regarded as an undertaking carrying out a public purpose. It is well-established in the United States of America that the power of eminent domain can be exercised for establishing public utilities. Such a power could, therefore, be exercised for establishing a factory for manufacturing equipment upon which a public utility depends. It is, therefore, clear that quite apart from the provisions of sub-s. (3) of S. 6 the notification of the State Government under s. 6 cannot be successfully challenged on the ground that the object of the acquisition is not to carry out a public purpose. We cannot, therefore, accept the petitioners contention that the action of the Government in making the notification under sub-s. (1) of S. 6 was a colourable exercise of the power conferred by theis not disputed that no new factory can be established without obtaining a licence from the appropriate authority under the Industries Development and Regulation Act, 1951 and that the petitioners do not hold any licence of thisis true that a licence for erecting a paper factory was granted to Messrs. R. S. Madhoram and Sons but the location of that factory is to be in Uttar Pradesh and not in the State of Punjab. Without, therefore, obtaining the approval of the appropriate authority the location of the factory could not be shifted to the land in question which, as already stated, is situate in the State of Punjab. Moreover this licence has since been cancelled on the ground that Messrs R. S. Madhoram and sons have taken no steps so far for establishing a paper factory. It is necessary to mention that the petitioners allege that his cancellation was procured by the respondents with the object of impeding the present petitioners. With that, however, we need not concern ourselves because that licence as it stood on the date of the petitions did not entitle Messrs R. S. Madhoram and Sons to establish a factory in the State of Punjab.58. Apart from that is always open to the State to fix priorities amongst public utilities of different kinds, bearing in mind the needs of the State, the existing facilities and other relevant factors. In the State like the Punjab where there is a large surplus of fruit and dairy products there is need for preserving it. There are already in existence a number of cold storages in that State. The Government would, therefore, he acting reasonably in giving priority to a factory for manufacturing refrigeration on equipment which would be available for replacement in these storages and which would also be available for equipping new cold storages.59. Apart from this it is for the State Government to say which particular industry may be regarded as beneficial to the public and to decide that its establishment would serve a public purpose. No question of discrimination would, therefore, arise merely by reason of the fact that Government has declared that the establishment of a particular industry is a public purpose. The challenge to the notification based on Art. 14. of the Constitution must, therefore,it seems to us that where there is an emergency by reason of which the State Government directs under sub-s. (4) of S. 17 of the Act that the provisions of S. 5A need not be complied with the whole matter, that is, the actual requirement of the land for a public purpose must necessarily have been considered at the earliest stage itself that is when it was decided that compliance with the provisions or S. 5A be dispensed with. It is therefore, difficult to see why the two notifications cannot, in such a case. be made simultaneously. A notification under sub-s. (1), of S. 4 is a condition precedent to the making of notification under sub-s. (1), of S. 6. If the Government, therefore, takes a decision to make such a notification and therefore, takes two further decisions, that is, to dispense with compliance with the provisions of S. 5A and also to declare that the land comprised in the notification is in fact needed for a public purpose, there is no departure from any provision of the law even though the two notifications are published on the same day. In the case before us the preliminary declaration under S. 4(1) was made on August 18, 1961 and a declaration as to the satisfaction of the Government on August 19, 1961 though both of them were published in the Gazette of August, 25, 1961. The preliminary declaration as well as the subsequent declaration are both required by law to be published in the official gazette. But the law does not make the prior publication of notification under sub-s. (i) of S. 4 a condition precedent to the publication of a notification under sub-s. (l) of S. 6. Where acquisition is being made after following the normal procedure the notification under the latter section will necessarily have to be published subsequent to the notification under the former section because in such a case the observance of procedure under S. 5A is interposed between the two notifications. But where section 5A is not in the way there is no irregularity in publishing those notifications on the same day.The serial numbers of the notifications are Nos. 5809/41(B)/ (I),6118755 dated August 18, 1961 and 5808-4 IB(I)61/18760 dated August 19, 1961 and it would appear from them that the preliminary notification did in fact precede the finalhave carefully gone through the judgment in that case, and, with great respect to the learned Judges, I cannot see any acceptable reasons for departing from the earlier view of the same court. Odors, J., concentrated his criticism of the earlier judgment more on the reliance by the earlier Bench on the decision of the House of Lords that on the intrinsic merits of the decision itself. It is true that the learned Judges in the earlier decision relied upon the observations of the House of Lords, but that was only in support of their conclusion why the expression "part" should not be understood as a particle. But the main reason they gave was that, having regard to the object of that proviso, the Legislature in using the word "part" could have only meant a substantial part or otherwise the object would be defeated and the abuse of power which it intended to prevent could easily be perpetrated under the colour of the Act. The second reason given by Odgers, J. was stated by the learned Judge thus at p. 314 (of ILR Mad) (at p. 247 ofinvited the learned Advocate for the appellant to say where a "particle" would end and "part" begin of this sum of Rs. 600. It is true an anna is a very small part of Rs. 600. But nevertheless it is aadherence to the strict latter in complete disregard of the spirit of the section certainly defeats the purpose of the legislation. The word "partly" in the proviso should be construed in the setting in which it is used and not in vaccum, as the learned Judge sought to do. The third reason the learned Judge gives for his conclusion was stated at p. 315 (of ILR Mad): (at. p. 241 of AIR)on appeal the compensation had been enhanced. There is no doubt the Government would have to defray the extra sum out of the public revenues and having once undertaken the acquisition they could not call on the constituentscomment again, in my view, is beside the point. It is not the duty of the Government to meticulously fix a figure; it may agree to bear a definite proportion of the compensation that may ultimately be awarded to a claimant and in that even subsequent variations by hierarchy of tribunals would not cause any difficulty, for the proportion would attach itself to the varying figures. That apart, it need not be particular fraction of the compensation ultimately awarded. If the Government agrees to contribute a substantial part of the estimated compensation that would meet the requirements of the section. The other learned Judge, Madhavan Nair, J.; in substance agreed with the judgment of Odgers, J., and did not disclose any additional reasons for differing from the decision of the earlier Bench. In my view, the decision in ILR 50 Mad 308  : (AIR 1927 Mad 245  ) is not correct. These two were considered by a Full Bench of the Madras High Court in ILR (1946) Mad 153 at p. 158: (AIR 1945 Mad 394   at p. 395)(FB). There Sir Lionel Leach, C. J., delivering the judgment of the Full Bench, noticed the judgment of the Division Bench in AIR 1926 Mad 1099   and the criticism offered on the judgment by the latter Division Bench in ILR 50 Mad 308  : (AIR 1927 Mad 245  ) andare in entire agreement with thisthe learned Chief Justice proceeded tointerpreting the proviso we can only have regard to the words used and, in our judgment, it is sufficient compliance with the proviso if any part of the compensation is paid out of public funds. One anna is a part of the compensation. It is true it is a small part, but it is nevertheless aliteral interpretation of the word "part" de hors the setting in which that word appears in the section, in my view, makes the condition imposed on the exercise of the jurisdiction by the Government meaningless and also attributes to the Legislature an intention to impose a purposeless and ineffective formality. For the reasons already given, I cannot accept the correctness of this judgment. I therefore, hold that unless the Government agrees to contribute a substantial part of the compensation, depending upon the circumstances of each case, the condition imposed by the proviso on the exercise by the appropriate Government of its jurisdiction is not complied with. In the instant case it is impossible to say that a sum of Rs.100 out of an estimated, compensation which may go even beyond Rs. 4,00,000 is in any sense of the term a substantial part of the said compensation. The Government has clearly broken the condition and therefore, it has no jurisdiction to issue the declaration under S. 6 of the Act.65. In this view it is not necessary to express my opinion on the other questions raised in this case.