/.l

. .,

THE COLLECTOR (DISTT. MAGISTRATE)

ALLAHABAD AND ANR.

RAJA RAM JAISWAL ETC.

April 29, 1985

(D.A. DESAI AND V. BALAKRISHNA ERADI, JJ,)

Land Acquisition Act, 1894 section 4 (J), scope of-Acquisilion of Land for public purpose-Whether notification In the official gazette and causing public notice of the substance of such notification the. need of a rand for a public purpose, mandatory-Concept of pfejudice-Wlrere in a case, objections have been filed to the acquisirion proceedings, pursuant to an earlier notification whether non publication and non notification of its substance in ihe locality and of a corrigendum thereof issued later would still vitiate the proceedingS under section 4 (/)-Effect of the world "shall" in section 4 (I)-When malafideS are attributed, imp/eading of the proper party effected thereby' is obligatory-Ma/afides-Legal ma/afides. explained. ,,,

Raja Ram Jaiswa1 along with the mC'inbers of his family purchased land bearing. p!Ot No. 26 with a building thereon admeasuring 2978 sq, yds. situated at K.P. Kakkar Road in Mclrch 1970. The plan for a sound proof air-condition .. ed cinema. theatre on the said plot subrriitted by hifn was sanctioned both by the District Magistrate and the local Municipality in December, 1970 and thereafter he applied for a certificate of approval under Rule 3 read with Rule 7 (2) of the U.P. Cinematograph Rules, 1951 for construction of a Cinema theatre.

The Hidi Sabit:Ya Sammelan which _was initiaily formed a~ a voluntary organisation in 1910 and r<!gistered as a society under the Societies. Registr'ation Act on January 8, 1914 retaining the same naine had earlier acquired and taken possession from te Allahabad Municipal Board land admeasuring 7315 sq. yds. and in which a municipal school was located for purpose of building "Sangraha .. laya" or a museum-cum.library-cum-reading room. However no museUm has come up and the land Hes vacant. This Sammelan raised objections to the grant of a permit for the constructions of the cinema theatre as in its view a theatre and a research cum study centre can go ill-together. Overruling the objections, the District Magistrate, the Licensing Authority urider the U.P.

Cinema (Regulation) Act, 1955 granted the requisite certificate of approval, on March 24, 1972, under RUie 3 which would .in law imply that having regard to the provisions of the 1955 Act, and 1951 Rules, there was no legal impedirRent to the construction of a cinerna theatre on plot No. 26. Having failed to thwi:trt the grnt of certificte of approv.~1, te Smmelan wrot~ a letter on Octobei 13J

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A 1971 fOr acquiring land bearing plot No. 26 admcasuring approic.imately 286S sq. yds. on the ground that' it was Deeded for a public purpose namely for exlension of Hindi Sangrahalaya of Hindi Sahitya Sammelan Prayag. This Notification was publi'ihed in the U.P. Government Gazette on February ", 19_74. A notice under section 4 (1) bearing the same dafe was served upon' the petitioner as also the snme was published in the locality,' the petitioner challeng ed the val . .idity of the notification on diverse grounds in Writ Petition No, ' B 1932(74 and obtained interim stay. of taking over possession.

>I H

.In the meantime, by Notification dated February r, 1975, the earlier Noti fication dated January 31, 1974 was cancelled and a fresh Notification was issued to acquire uland bearing No. 62 admeasuring 8265 sq. yds." and published in the lJ.P .. Gar:ette on February 15,'"1975. Consequently .Writ Petition No. 1932174 was JZot dismis,.ed a" !nfructuou1:. A notice dated March 6, 1975 under

ection 5 A of the Land Acquisition Act wa'i served upon the petitioner inviting . him t6 file his objections, if any. The" petitioner filed detailed objections .on March 8, 1975 inter Olia contending that the acquisition is for a complilly_1, and the pre-requisite for acquisition for a company having not been carried out, the ar.quisition is bad in law. It was also contended that the petitioner. is tiot the owner or plot No. fi2 ad measuring 8265 sq. yds. Promptly on March., 13, 1975, a. corringendum was issued and publ.ished. inthe Gazette on March 22",;1975 correcting the notification dated. February 6, ~975 to read that, instead of,, plot No. 62 Plot, No. 26 be read and instead of area >265 sq. yds., 2865 sq. YdS. be . read. The substance of Gazette the notifications dated 15.1.1975 March 2?r .. \975

were not published in the Jocalits.required under section 4 (t). In between the issue of the notification and the ~rrigendum, the petitioner filed _Writ Petition 3174/75 questioning the .validity fthe notification dated February 6, .1975 and duly a1nending the grounds after issue of. the corrigendum. The High. Court negatived the challenges nemely, (a) that the Notification. was bad .for noncompliance flrnt with the proviions of the L1nd Acquisition (CompariieS) RUleS, . 1963; anJ' (b) that the acqui'iition proceedings are malafide but quashe, ct'.the

in1pugned notification on the ground of failure to cause public notie;· of , the Substance of Notification under section 4 (l} to be published is the locality.

Hence the State appeal (CA No. 2458/80) by spe:ial leave and the Special Leave Petitio.n No. 9019/80 by Raja Ram.

Dismissing the State ai)peal and allowing in part the Special Leave Petition, the Court,

. HELD : l. When the validity of a Notification is questioned on -.the ground of nialafides, proper parties affected by such an allegation must be impleaded in the petition. In this case. Samme!an's application for iOterVeO'iion under Order XX Rule 3 of the Supreme Court. Rules 1965 must begranted , thoi.lgh the Sam me Ian has not moved this Court against the High Court's order rejecting the application for ilnpleading. [1004D~EJ

2.1 rt is true that ordinarily courts do not interfere at the stage of Sec. 4 notification because it merely constitutes a proposal wich wi11 be meticuloiisty eKa; mined after the objections are filed under Sectien SA by the person.iQiereSted

,,, .

• DISTT. MAGISTRATE V. R.R. JAisWAL 997

in. the land wherein all aspects of the matter can be threadbare gone into and A examined. HoWever, as a notification under section 4 (1) initiates the proceedings for acquisition of land and uses the en.pression 'shall' the mandate of the legislature becomes clear and therefre, the infirmities therein cailnot be wholly overlooked on the specious plea that the courts do not interdict 3.t the stage of a mere proposal. [1006 E-G]

2.2 A bare perusal of seetion 4 (!) clearly shows that in order to comply with the statutory requirements therein set out, a notifiCation stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official Gazette: The second part of the sub-section provides that

'th~ Conector has to .cause pub1ic notice or the substance of "such notification to be given at convenient places in the IocaHty in wbich the land proposed to be acQuired is situated. Both the ct)nditions are mandatory. Unless.both thesecondi tions are satisfied, section 4 or the Land Acquisition Act cannot be said to have been complied with. Nor cari Court whittle down a mandate or legislation recog..

nise~ by a long line or decisions solely dePending upon the racts or a given case ; as is herer. Further after th~ 1974 (U.P. Amendment and Validation Act VIII of .]974), Section 4 (I) on its true interpretation may unmistakahty indicate that where the enquiry under Sect.ion 5 A is not di!:pensed with by resorting to Sec. 17 (4), compliance with the second part or Section 4 would be mandatory.

[1006H, 1007A-D, 1009D-E]

Khub Chand and Ors. v. State of Rajasthan and.Or<., [1967] I SCR 120 at . 125 ; Babu Barkya Thakur v. The State of Bombay, [1961] I SCR 128: Smt.

Somavanti and Orr. v. The State of Punjab & Ors., [196J] 2 SCR.774; State of Mysorev. Abdul Razak Sahib, (1973) 1SCR856 referred to.

Gangadharaih v. State of Mysore & Ors., (1961) Mys. L.J. 883 approved. £

2.3 It is not correct to asc; ume that the sole purpose behind publication of substance of Notification in locality. as required secondly iD section 4 (1) of the , Land Acquisition Act is to make requirements of section 5 A functionally effec- . tive, [1009G]

Where a decision. of the Government to be effective and .valid has .to be notified in the Government Gazette. the decision itself doCs not become effectiv~ unless a notification in the Official Gazette follows. Therefore, assuming that a notification is a formal eXpression of a decision of the Government to acquire tand. 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. Section 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 Section 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 nodcation under section 4 (1) and simultaneously or within a reasonable time from the date of the publicatin of the notification cuse a notice to be published containing ·$ubstance of such notification meaning thereby that notification which js pub ..

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(1985] 3 S.C.R.

lished. Obviously, therefore, there cannot be a publication in thci Jocality prior to the issuance of the notification. [lOIOB-G]

Babu Barkya Thakur v. The State of Bombay, [1961] I SCR 128; Narendra Bahadur Singh and Anr. v. State of U.P. & Ors, [1977] 2 SCR 226; State of Madhya Pradesh & Ors. v.' Vishnu Prasad Sharma & Ors, [1966] 3 SCR 557 held in applicable. ....

Mahendra Lal Jain/ v. The State of Uttur Prad'esh & Ors, [1963] Supp, 1 SCR 912 relied on.

3: 1 Where power is conferred to achieve a purpose the power must be exercise reasonably and in good faith to effec!uate the purpose. And in this context 'in good faith' means for legitimate. reasons.

Wher~ it is exerciSed for extraneous or irrelevant consideration or reasons, it is unquestionab y a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and fof none other. If it is exercised for an extfancous, irrelevant or non-germane consideration, the acquiring authority can be charged with Jegiil malafidcs. In Such a situation there is no questionof any persona 1 ill-will or motive. [l OI8C-E]

Municipal Counri/ of Sydney v. Compbel/, [1925] A.C. 338 at 375 quoted with approval.

State of Punjab v. Gurdia/ Singh & Ors, [1980] l SCR 1071 explained and foJlowed. ·

3.2 Where rower is conferred to achieve a certain purpose, the power can be exercisd oaly for achieving that purpose. Section 4(1) confers power on the Governmnt H!Jd the Collector to acquire land needed for a public purpose. The power to acquire land is to be excercised for carrying out a p1,1blic purpose. If the authoritfos of the Sammelan cannot tolerate the existence of a cinen1a theatre in its vicinity it cannot be said that such a pur po8e would be a public purpose. The authority of the Sammelan may honestly believe that the existence of a cinema theatre maY have -the pernicious, tendency to vitiate the educational and cultural enviorrhent of the institution and therefore, it would like to wish away a cinema theatre in its vicinity. That hardly constitutes public purpose. The proclaimed need of land for putting up Sangrahalya is an easy escape route whenever Sammclao wants tu take over some piece of land. Need of.the land for Sangtahalya is a figment of imagination consured up'to provide an ostensible purpose for acquisition. There is enough land roughly adn1easuring 7315 sq. yds. lying vacant and unutilised with the Sammclan for over a\ quarter of a century. The Sangrahalya has not Come up thoUgh thi3 was the land which was taken fn:irn the. Municipal Board for the avowed object of putting up a Sangrahalya. 1.'he Sammelan moved on to Rangamanch nd Natyashala and then ultimately adopted a position that whea the land is made available, scheme will be devised for its proper use. The S.'.1n1mt.lan was ever intcrstcd in acquiring the land for effectuating any of its

object~. It Q.as neither the plans QOr the wherewithal nor any specific object

nisrr. MAGISTRATB v. R.R. JAISWAL (Desai, J.) ,999,.

fOr which it needs land and it is unable to use over years the land already A

vailable a'.t its disposal. Therefore, the Sammelan was aciuateC:f by CxtraOeo'ii~ ' and irrelevant considerations in seeking acquisitiori of the land and the statutory authority having !<nown this fact yet proceede~ .to exercise statutory pwoer/ and init.iated tho process of acquisition. [1017F-H, IOISA-B]

1 3.3. Te power t~ .acqUire land was a' exercised for an extraileos and . irrelevant purpose and it was coloilrable exercise ofi:>ower, TI.arllely, to s3.tis'rY' 1 . the chagrin and anguish of the Sammelan at , the comingup of a cinema theatre in the viCinity of its campus,_ whih vowed 'to destroy. Thetefo-re, the considera .. tion dated 6.2.1975 is illegal and invalid. [l019E-FJ • • ' f

. . . . . ( . ,.

CIVIL APPELLA TB JURISDICTION : . Civil .. Appeal .No. 2458 and S.L.P. No. 9019 of 1980 '"' · "' c

.t,1 ·• ".' .•'{ . . . . . ' From 'the Judgment and Order dated 7.12. 1979 of the Allahabad High Court .in Civil• Misc.

Writ Petition No. 3174 of 1975.

' • R.N. Trivedi, Additional A4vocate , General, Gopa/ Subrama- D nlam and Ms. Shobha Dlkshit for the Appellant~. .

F.S Nariman, Raja Ram Agarwal; YogeshwarPrasad, Mr .... Rani Chhabra and Ms. Sman Bagga for the respondent. ., " The Judgment of the Court was delivered by

DBSAI, J. Respondent Raja Ram Jaiswal moved Civil Miscella.neous Writ_Petition No. 3174of1975 under Art. 226 of the Consti-.,

tution in the High Court of Judicature at Allahadad quesiioningr; the validity of the Notification dated February 6, 1975 issued under

Sec. 4(1) of the Land Acquistion Act ('Act' for short) as also a"iiotice dated March 6, 197 5 served upon him pursuant to the afore-mentioned notification. The impugned notification was published in the U.P. Government Gazette dated February 15, 1975.

Jly this . impugned notification, land bearing Plot No. 62 approximately adme"asuring 8265 sq. yds. was sought to be acquired' as being needed for a public purposse namely for extension of Hindi Sangrahalaya of the Hindi Sahitya Samnielan Piayag:. 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,

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(1985] 3 S.C.R.

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, atthe 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 :

"!. 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 provi sions of rule 4 of the Land Acquisition (Companies) 1 ~' ,.

Rules, 1963.

2. Acquisition proceedings are mala fide.

' 3. Notice under section 4(1) of the Act was served.upon the petitioner on 6th March, 1975 when only two days time was left for filing objections under Section 5-A n of the Land Acquisition Act.

This rendered the proceedings illegal.

4. The notification under Section 4(1) did not relate to plot No. 26 belongin_g to the petitioner. Proceeding11 to acquire the said plot are therefore withont juris .. diction."

After the petition was amended two additional grounds of challenge we.re pressed on behalf of the respondent.· They are:

"1. The notification dated 13th March, 1975 isi nvalid for the very same reason for which the notification dated 6th February; 1973 is Claimed to be invalid.

2; The Land Acquisition proceedings are invalid inasmuch as the notification dated 13th March, 1975 was neither published nor was its substance notified in the locality, as also because no notice thereof had been served upon the petition<:r."

Negativing all the challenges. except th<: one that as thete was failure to cause public notice of th<: substance of notification linde.r Sec. 4(\) to be published at convenient place in the. locality on

DISTT. MAGISTRATE V R. R. JAISWA.L (Desai, J.) 1001

this short ground, the impugned notification was quashed. Hence A this appeal by the Collector, Allahabad and the Land Acquisition Officer by special leave. ·

Respondent who was the original petitioner but is respondent in the appeal filed by the Collector will be referred to as the petitioner in this judgment.

Petitioner field Special Leave Petition No. 9019 of 1980 against the same judgment contending that the High Court committed an error in rejecting . the challenge to the validity of the impugned notification on the ground of legal mala fides as also on the gronnd of non-compliance with Rule 4 of the Land Acquisition (Companies) Rules, 1963.

As both these matters arise out of the same judgment, . they were _heard together and are being disposed of by a common judgment. It may be mentioned that connected Civil Appeal No. 2437 of 1981 was to be taken up for hearing after the hearing concluded in the present appeal _ and therefore, the judgment in this matter was postponed because the observations in one were likely to have some impact on the disposal on merits of the contentions in the cognate appeal. Though very much delayed by circumstances beyond our . control, few days back the hearing in the cog'Oate appeal is over and therefore, both t_he appeals can now be disposed of though by Separate judgments.

A 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 ttie land was sought to be acquired was initially' formed as a volun- .iary organisation in 1910 and on January 8, _1914 it was registred

as a society under the Societies Registration Act retaining the same name. Somewhere in 1950 diffierences arose between the. members of the society and the attempt to lier the constitution of the society, ultimately led to litigation.

U.P. Legislature enacted aa 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 th_e society. The Act was however struck down as unconstitutional.in Dainyanti Naranga v. Union of India & Ors.(1) The pre-existing Sammelan which was a registered society

(I) (1971) 3 S.C.R. 840

SUPRBME COURT REPORTS [1985] 3 s.c.R.

'11 continuea to function as such. lt 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

~Sangrahalaya' which was roughly translated as mueum-cum-library • . cumreading room.

• F

At tbe instance of the Sammelau. Allahabad Municipal Board agreed to hand . over the land and building in which a municipal school was located, situated at Kamta Prasad Kakkar Road adja cent to the Central office and Press of the Sammelan, on certain conditions. The Sammelan needed the land, as it was then declared, to establish a mnseum.

The land with the school building y thereon was transfeued to the Sammelan in 1953. It may be mentioned that even till today the area of land admeasuring 7315 sq. yds. in .possession of the Sammelan is lying vacant and for the qnarter of a century, mnseum has not come up. This aspect is mentioned in some detail as it has an impact on the contention .canvassed in these appeals.

. Petitione; Jaiswal along with the members of his family purchased land bearing plot No. 26 with a buildi;; g thereon admeasuring 2978 sq. yds. situated at K. P. Kakkar Road in March 1970.

The petitioner wanted to build a sound-proof air-conditioned cinema theatre on the plot NJ. 26 purchased by him. The plan for the proposed theatre was sanctioned both by the District Magistrate and the local mnnicip11ity in December 1970. It may be recalled here that the jndgment of this Conrt holding Hindi Sahitya Sammelan Act nnconstitntional was rendered on February 23, 1971. . The Sammelan was wholly opposed to the construction of a theatre near its campus as in its view a theatre and a research-cum-study centre can go ill together. Therefore, when the petitioner applied for a certificate of approval under Rule 3 read with rule 7(2) of the U.P. Cinematograph Rules 1951 for construction of a cinema theatre, authorities of the Sammelan raised a . storm of protest, sometimes peaceful occasionally likely to turn violent impelling authorities to impose restrictive orders under Sec. 144, Code of Criminal Procedure. Sammelan also submitted a long memorandum setting out its objections with a view to persuading the authorities not to grant a certificate of approval for construction of a cinema

" H

(I) [1971] 3 S.C.R. 840

' '

biSIT. MAGISTRATE v. R. R. JAiSWAL (Desai, I.) 100~

building. Overruling the , objections the District Magistrate, the Licencing Authority under the U.P. Cinemas (Regulation) Act, 1955 granted the requisite certificate of approval under Ruk 3 which would in law imply that havirig regard to th.e provisions of the 1955 Act and 1951 Rules, 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 permision 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 l 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 notice under Sec,· 4(1) bearing the same date was served upon the petitioner as also the same was published in the locality. The petitioner challenged the validity of this notification on diverse grounds in Writ Petition No. 1.932/74 and as a measure Zof interim relief, the High Conrt stayed further proceeding that may be taken to acquire the land. In the meantime by notification dated February 6, 1975, the earlier notification under Sec. 4(1) dated January 31, 1974 was1 cancelled and a fresh notification was issued to acquire 'land bearing plot No. 62 admeasuring 8265 sq. yds. for the earlier mentioned public purpose'. Consequently, the writ petition in which the validityofthe earlier notification was questioned was disposed of as infructuous.

The second notification dated February 6, 1975 was published in tM U.P. Gazette on February 15, 1975. A notice dated March 6, 1975 under Sec. SA of the Land Acquisition Act was served upon the peti' tioner inviting him to file his oojection, if there be any, against the proposed acquisition. The petitioner filed detailed objections on March 8, 1975 inter a/ia contending that the acquisition is for a

1004 SiJPRBMB CQURT REPORTS [1985] 3 s.c.Ji..

company and the pre-reqnisite for acquisition for a company having not been carried out, the acquisition is bad in law. It was also contended that the petitioner is not the own.er of plot No. 62 admeasuring 8265 sq. yds. Promptly on March 13, 1975, a corrigendum was issued and published in the Gazette on March 22, 1975 correcting the notification dated February 6, 1975 to read that instead of plot No .. 62, plot No. 26 be read and instead of area 8265 sq.· yds. 2865 sq. yds. be read. In between the issue. of the notification and the corrigendum, the petitioner filed Writ Petition 3174/75 questioning the validity of the notification dated February 6, 1975; The High Court struck down the notification as invalid and during the pen<Jancy of the writ petition in.the High Court, further continuance of the acquisition proceedings were stayed.

If the petitioner questioned the validity of the notification on ground of mala tides, he ought to have joined Sammelan as respondent.

Having failed to implead a proper party, he behaved curiously in opposing .the application of the Sammelan for beillg impleaded as a party. The High Court was in error in rejecting the application. Therefore, when the Sammelan moved an application for intervention under Order XX rul<: 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 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 correct-. ness of this view is questioned on behalf of the appellants.

 After scruitinising the evidence placed on record, the High Court has recorded a findmg that the substance of the notification wasnot published in the locality either after 15th February, 1975 when the notification dated February 6, 1975 was first publised in the Official Gazette or after March 22, 1975 when the corrigendum was

, f

' l>ISTT. MAGISTRATE v. R.R. JAISWAL (Desai, J.) 109s

publis)l.ed in the Official Gazette and thus the. requirement of the second part of Sec. 4(1) has not been complied. w.ith. The. finding that there was no such publication as herein indicated w.as not seriously questioned and in fact could not be questioned. A few facts will affirmatively establish it. The first notification dated January 31, 1974 was published in the o.flicial Gazette dated February 9, 1974 and in respect of which a notice was published in. the locality in March, 1974. A copy of the notice was served on the petitioner on March 6, 197 4. This notification bore the number 78 V.III-LAQ and it was in respect of plot N~. 26 admeasuring 2865 sq. yds. This notification was cancelled and superseded by another notification No. 552-VIII~LAQ dated February 6, 1975, which was published in the Official Gazette dated February 15,

1975. This latter notification clearly recites that•the ear.lier notifi cation dated February 9, 1974 is thereby cancelled. In the latter notification dated Feb. 6, 1975, the land proposed to be acquired was shown to be plot No. 65 admeasuring 8265 sq. yds.· Admit tedly notice of the substance of this notification was not published 'in the locality. The petitioner had nothing to do with land bear ·

ing plot No. 62 admeasuring 8265 sq. yds.

As the.previous.notifi cation was cancelled, he had nothing to worry about the second .notification which has no . relevance to the plot belonging to him.

The corrigendum dated March 13, 1975 was issued and pub~ lished in the Official Gazette dated March 22, 1975 correcting the plot number and the area and the correted entry was to b~ in reference to plot No. 26 and area to be acquired was to be 2865 sq. ycts.

Admittedly, there was no notice of publication of the substance o( the notification dated Februa.ry 15,. 1975 nor of the corrige.dum dated March 22, 1975 in the lacality. The High Court was therefore, right in holding that in respect of the later notification and .corrigendum, no notice was published in the locality and latter part of Sec. 4(1) was .not complied with.

Sec. 4(1) in its application to. the State of .U.P. reads as under:

"4(1) : Whenever it apppears to the appropriate Government or 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

the Collector shall cause public notice of.the substance of H

1006 \

SUPREME COURT REPORTS [1985] 3 s.C.R.

sud( noiification 'fo be given at convenient places in the '' said locality."

• r1' 1 ·

By . Land Acquisition (U .P. Amend men! And Validation) ActVlli of 1974, the section was amended to read as under : ; ,! ' •

' i. , '"'4(1) : Whether it appears to the appropriate Oovem- • 'ment and the Collector that land in any iocality is needed "or h.likely to be needed for any public purpose, a notifica- .. tion to tliat effect shall lie published in the Official , Gazette, and except in the case of any land to which . by ; virtue of a direction of the Staie 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 imptigne<i notification, yet some reference was made to it to buttress the submission 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.

::'·:: ., .

M" S.N. Kicker for' the intervener and Mr. Dikshit for the State of' U.P. urged that ordinarily courts do not interfere at' the stage of Sec. 4 notification because it merely constitutes a proposal viliich will be meticulously examined after the objections are filed tirlllJr'Sec.5A by'the priim ithested in the land wherein all aspects of the matter can be threadbare gone into and examined.

Broadly stated, one cannot take serious exception to this snbmission.

However; as a not1tication under Sec. 4 (I). initiates the proceedings for acquisition of land and uses the expression 'shall' the mandate of the legislature becomes clear and therefore, the infirmities therein cannot be wholly. overlooked on the specious plea that the courts do not interdict at the stage of a mere proposal.

A hare' perusalof Sec. 4 (I) clearly shows that. in order to. comply'\vith the stattory 're'qiifrements therein set out, a notifi.cation

DJSTT. M:A.GISTRATB v. Il. R. iA.ISWA.L (Desai, J.) toot

stating 'therein the land which is needed or is likely to be needed for a public purpose' has to be published in the official Gazette. The second part of the sub-section provides that 'the Collector has to

cause public notice of the substance of such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated. BJlh the conditions are held by a catena of decisions to be mandatory. Whether the second condition is mandatory or irectory is no mor~ res inlegra. In Khub.chand and Ors. v.

State l Rajasthan and Ors.(1), Subba Rao, CJ speaking for the court observed that 'the statutory intention is, therefore, clear, namely, that the giving of_ public notice is mandatory. If o, the notification issued under s. 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void~' While reaching this conclusion, the Court distinguished the decision in Babu Barkya Thakur v.

The Sate of Bombay(') wherein it was held that 'any defect in the notification under Sec. 4 is not fatal to the validity of the proceedings, particularly when the acquisition is .for a company and the

prpose has to _be investigated UJ!der s. 5A or s. 40 necessarily after the issue of the notification under .s. 4 of the Act'. The Court pointed out that the defect with which the notification in Bahu Barkya Thakur's case _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 sch an approach would constituie rewriting the section. The court also. referred to Smt. Somavanti and Ors. v .. The State f Punjab & Ors.<'> and quoted with approval the statement therein made that a valid notification under sub-s. (I) of Sec. 4 is a condition precedent to the making of a declaration under snb-s. (I) of Sec. 6. This view has been consistently followed and was approved in State of Mysore v. Abdul Razak Sahib<'J, 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 adoition to the' pnblication of tbe 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

(l) [1967] 1 S.C, R. j20 at 125.

(2) [1961} I S.C.R. 128.

(3) (1963] 2 S.C.R. 774.

(4) [1973] 1 S, C.R. 8~.

' G

SUPREME C!'URT REPORTS (1985] js.c.R..

of. the Land Acquisition Act cannot tie said to have been complied with. The publication of a uotice in the locality is a mandatory requirement. Mr. Kacker however, drew our attention to a few more observations. in the judgment wherein it was said that there is an important purpose behind publication of the substance of the notification in the locality because in the absence of such publication, the interested persons may not be able to file their objections challenging the proposed acquisition and they will be denied an opportunity afforded by s. 5A which confers a very valuable right.

Relying on this obsevation Mr. Kacker urged that if the underlying purpose behind publication of a notice in the locality is to give an opportunity to the person interested in the land to object to .the acquisition, where in a case the purpose is achieved as in this case the petitioner having filed his objections, the failure to publish the substance of the notification in the locality need not be treated fatal and cannot invalidate the proceedings. The submission as presen ted is very persuasive and but for binding precedents, we would have accorded considerable attention toit. But we would not whittle down a mandate of legislation recognised by a long line of decisions solely . depending upon the facts of a given ca.se. Further the submission is P, redicated upon an assumption that the sole purpose behind publication of substance of notification in locality is to make requirements of Sec. 5A functionally effective. The assumption as would be pointed out is not well founded. In fact, the court in the last mentioned case went so far as approving the decision of the Mysore High Court in Gangadharaih v. State of Mysore & Ors.(1) wherein. it was ruled that '.when a notification under s. 4 (I} is published in the official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property pro-. posed to be acquired can be regarded to have had notice of the proposed acquisition.' This is a mandatory requirement for legal compliance with requirements of Sec. 4 (I). In Narendra Bahadur

Sigh and Anr. v. State of U.P. & Ors<'> this Court reiterated that a publication of the notice in the locality as required by the second part of s. 4 (I) is mandatory and unless. that nofa:e is given in accordance with the provisions contained therein, the entire acquisition proceedings are vitiated. "Repelling the contention, that

H (I) [1%1] Mys. L.J, 883

(2) [19771 2 s.c.R. 226 •

.y , .

bistt. MAGiSTRATB v. "' R. !AISWAL (Desai, i.) 1009

the only. purpose behind publicatiQn of a notice in the locality is to give opportunity to.the person intere.sted 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 (I) is fatal. It was pertinently observed that provisions of Sec. 4(1) cannot be held to be mandatory iJ1 one situation and direc;

tory in another and therefore, it cqnnot be said that the .only pur

pose behind making the publication of notice in the locality manda tory 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 (l) 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 objections against the proposed notification.

Incidentally~ it may be pointed out that after the 1974 amend-' ment, Sec. 4 (I) .on its true illterpretation may unmistakably indicate that where the enquiry under Sec. 5A is not dispensed with by re• sorting to Sec. 17 (4), compliance with the second part of Sec. 4 would be mandatory. We however do not propose to go into this

aspect because the amendment is subsequent to the notification. '

Mr. Kacker however on behalf of the interveners while conceding. that there cannot be a valid acquisition unless a notification is published in the Otlicfal Gazette and a substance of the notification. is published in the lacality, urged that publication in locality need not necessaiily followthe publication of. the notification in. the Official Gazette but it may. even precede the same because what is of importance is the decision to acquire; the notification and publi cation of the notice are mere formal expressions of the decision of the Gvt. to start acquisition proceedings. Proceeding along it was said that the second requirement of, Sec. 4 (I) viz. publication of the notice in the locality is only to make effective the provisions of Sec.

SA and that such minor defect cannot invalidate notification under Sec. 4. To substantiate this submission, reliance was placed upon the decisions in Babu Barkya Thakur's case, State of Madhya

SUPREME CQURT REPQRTS (1985] 3 s.c.R.

A Pradesh & Ors. v. Vishnu Prasad Sharma & Ors.(') and Narendra Bahadur Singh's case. All these decisions do not .bear out or substantiate the submission of Mr. Kacker for the reasons already mentioned.

Assuming that a notification in the 0 fficial Gazette is a formal expression of the decision of the Government, the decision of the Government is hardly relevant, unless it takes the concrete shape and form by publication in the Official Gazette. Where a decision of the Government to be effe9tive and vafid has to be notified in the Government Gazette, the decision itself does not become effective unless a notification in the Official Gazette follows.

Jn Mahendra Lal Jaini v. The State of Ullar Pradesh & Ors.(') it was held that a notification under Sec. 4A of the In di an Forest Act, 1927 is required io be published in the Gazette and unless it is so published, .it is of no effect.

Logically, the same view must be adopted for a: notification under Sec. 4. Therefore 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 Gaze\te by an appropriate notification, the proceedings for acqui- 'sition cannot be said to have been initiated and the decision would remain a paper decision. Sec. 4 (I) 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.

Jn this context, it was next contended that at any rate the petitioner has not suffered any prejudice by the failure of the Govern ment to publish. a notice in the locality because the petitioner has, filed detailed objections against the proposed acquisition. If the

(I) [1966) 3 S.C.R 551.

(2) [1963) Supp, 1 S.C.R. 912.

' .

• DiSTT. MAGiSTRATE v. R.R. JAISWAL (Desai, J.) 1011

only purpose behind publishing the notice in the locality was to .give an opportunity to the persons interested in the land to file their

objections, the submission would have merited consideration, but the same has been expressly negatived and therefore, it is futile to examine the same. To' be brutally frank if this was the only ground for invalidating the notification, in the backdrop of facts we would have our serions reservations in upholding the decision, though as the law stands, the. High Court was perfectly justified in reaching this conclusion. Our reservations have nothing to do with the perfectly legal view taken by the High Court. They stem from the facts of this case and our understanding o(the purpose behind publication of notice as set out by us earlier. In •such a situation, we would have developed the concept of prejudice and the absence of

it resulting in negativing the contention. But there are other formidable challenges to .the validity of the impugned notification, which of course have not found favour with .the High Court but we are inclined to take a different view of the matter. Therefore we let . the decision of the High .Court on this point stand.

Turning to the petition for special leave filed by the petitioner, we grant special leave to appeal and proceed to examine the two challenges to the validity of the notification under Sec. 4(1) which have been negatived by the High Court. The petitioner questioned the validity of the notification inter alia on the ground that the acquisition .was malafide and that the acquisition being for a Company,. it would be invalid for failure to comply with the provisions of rule 4 of the Land Acquisition (Companies) Rules, 1963. The High Court negatived both the chall, mges. Mr. Nariman, learned counsel for the petitioner invited us to examine them.· ·

The relevant averments on the question of mala !ides as set out in the writ petition filed in the High Court may l\e briefly summaris. ed.

As the objections by the S.ammelan for not grantiug a certificate of approval for constructing a cinema building on Plot No. 26 were not accepted by the Licensi.ng authority and a certificate of approval was subsequently granted to the petitioner, the Sammelan , in order to achieve the same object, namely, not to prmit 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 acquis.ition 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-

D •.


existent and the initiation of the acquisition proceedings was mala fide.

Its sole purpose is to deprive the petitioner <if 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 heing actuated by the ulterior motive to thwart'the petitioners' project to construct a cinema building reso'rted 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 Sa)11melan ought to ave been impleaded as a party to the writ . petition, Not only the Sammelan was not impleadedas 'the party, but when the Samme!at1 moved an application for intervention or for being joined as .a party, the petitioner was ill-advised to object to the sanie and unfortunately the objection prevailed with' the High Court. We are unable to appreciate both the objections and the view taken '.by the High Court. Therefore, when Mr. Nariman pressed his petit.ion for special leave to appeal against the rejection of the challenge on the afore-mentioned two grounds, we made it abundantly clear that we would be lea.st interested in examining . the . challenge' founded on the ground of mala fides in the absence of. the Sammelan. The Sammelan had moved a petition for intervention which, it must be stated in'fairness to Mr. Nari man, was not objected in this Court and we made it abundantly clear that the request for being impleaded as a party in the High Court ought not to have been objected. Accordingly, .the petition for intervention was granted and the Sammelan was given an opportunity to file its affidavit as well as any material that it chooses to place on record.

According to the rules, . the interveners are n11t entitled to address oral submissions to the court but in!the background of the facts of this case, we gave full opportunity to Mr. Kacker to address oral sub- 1ri:i'ssions. It is in the backdrop of these facts that we propose to examine the challenge founded on the ground of mala fides.

A few facts will have to be recapitulated. After the petitioner purchased the Plot No. 26 and submitted an application on July 6, 1971 to the licensing authority for grant of a certificate of approval as envisaged by rule 3 read with rule 7 ofU.P. Cinematograph Rules, 1951 ('1951 Rules' for short) for constructing a cinema building on Plot No. 26, the Sammelan promptly objected to the grant of certificate of approval on the ground that existence of a cinema theatre within the vicinity of the campus of the instjtqte of culture learning

' '

DJSTT. MAGISARATE v. R.R. JAISWAL (Desai, J.) 1013

andresearch like the Sammelan would be destructive of the environ- A ment .and the atmosphere of the institute, and existence of a cinema iheatre at such a place would be an incongruity. May be, it migjlt be tlie honest. and genuine belief of the office-bearers of the Sammelan that an institute of learning and . research cannot co-exist with a cinema theatre in its vicinity, and that the latter may pollute the educational and cultural environment. The District Magistrate as ihe licensing authority after corresponding with the State authorities granted the certificate of 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 tile campus of the Sammelan. The letter also refers to an earlier application addressed to the Chief Minister requesting him to interven..so that the proposed cinema house may not be permitted to be constructed ner the campus of the Sainmelan, because it is likely to cause nuisance and interfere with the activities arid 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 Disrict 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 r.equired for its purpose and that where the land is. to be acquired by a body, such a body itself must make an attempt to directly purchase the land. Then comes a sentence

which may be extracted :.

"It is also evident by your above referred letter that you stood. in need of acquiring land because the owner of the land wants to construct a cinema house over it and the institution does not want that a .cinema should. be constructed .over the same.

It is clear by the above circuinstances that the land is not so much required by. the institution as for the construction of the cinema house. Therefore, T would request you to consi der the matter and if your aim is that the.cinema house is not constructed you may resort to other means."

(underlining ours) H


I Jn the meantime on December 16, 1971, Joint Secretary to the Government of U.P. wrote to the District Magistrate enquiring as to 'whether in granting the certificate of approval, Rule 7 (2) of the 1951 Rules was violated ; What is the sphere of the activities of the Sammelan ; does it undertake teaching or "other such activities by virtue of which it may be placed in the category of Educational Institutions ; if for some other reasons, construction of cinema house on proposed site is against public interest, seek Government's approval in this respect specifying the. reasons thereon ; obtain. written objections from the Sammelan ; if required take Government's approval making recommendations ; and intimate whether cinema building will be sound-proof.' On March 24, 1972, the District Magistrate as the licensing authority sent a detailed reply inter.alia stating that the Sammelan is not an educational institution nor a residential institution and it bas no regular Jrog; amme of class teaching and. it cannot be styled as an educational institution within the meaning of the 'expression in rule 7.

He also opined that having regard to all relevant factors and other circumstances construction of a cinema building on the proposed site is not against the public interest. He also opined that tne pproved plans of the building showan air-conditioned sound-proof cinema theatre which would enhance the beautification of the locality and would enrich the coffers of the State. It was lastly pointed out that the distance. between the proposed cinema building and the campus of the Sammelan was. about 95 feet as crow-fly measure.

He cocluded by saying that having regard to all the circumstances, he was of the 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 s.ite, 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 folly air-conditioned and sound-proof was commenced. On August 7, 1983, the Sammelan moved a formal application requesting for initiating acquisition proce<; dings of land included in Plot No. 26 as it was needed by the Sammelan for the' purpose of extension of Hidi Sangrahalya (Museum!.

Skipping over some of the intermediate steps including a request to the then

DisTT. MAGISTRATE v. R. R. JAISWAL (Desai, J.) 1015

Prime Minister to intervene and thwart the cinema project, when the first notification nnder Sec. 4 (!) was published, the purpose for which the land was to be acquired was shown to be 'etension of Hindi Sangrahalya at Hindi Sahitya Sam me Ian Prayag'.

Way back on July 22, 1949, the Sammelan with a view to esta blishing a museum in connection with a Hindi University approached the Allahabad Municipal Board to transfer a middle school building along with the Gymnacia attached to it. The Municipal Board . unanimously sanctioned the proposal to handover the building of the school with appurtenant land situated at Kanta Prasad Kakkar Road . (that is ihe road on which the irritating cinema theatre has come up) """'\."" to the sammelan subject to the condition that the Sammelan would

 ' construct a school building at South Malaka at a cost of Rs. 30,000.

The Sammelan accepted the condition and complied with it. The Government accorded sanction to the proposal on September 9, 1953 and since then the school building with the land over which it is standing and the Gymnacia were transferred to the Samnielan. It is an admitted position that an area of 7315 sq. yds. of land in the Sammelan campus is lying vacant, open and _unutilised till today,. that is for thirty'two years. This will have a direct impact on the alleged need of the Sam me Ian of the land propsed to be acquired.

At the time of taking over the school building, the Sammelan had contemplated putting up a museum. That again is the purpose forwhich the land involved in this appeal is sought to be acquired at the instance of the Sammelan. When this rather disturbing position emerged on analysis and evaluation of uncontroverted facts, it was suggested that the Sammellan wanted to construct a building for Natyashala and Rangmanch for which plans have not been prepared.

All these inconvenient facts found reflection in the order sheet of the Collector dated September 3, 1973 in which it is. stated that

"since the authorities of the Samrnelan have capacity to approach the highest authority of the democratic Government as is evident from the letters received from their office, the office is not capable to offer any comments whatever might be the proposal whether It is according. to the rules or against the rules or the same should be allowed to remain as it is etc." Later on the Sammelan stated that after the land is acquired, it would be utilised for implementation of some new schemes. Thus though the Sammelan indisputably bad and has open land in its posssession from 1953 till 1973, it did not construct the museum for which it had obtained land from the

1016 SUPl\EME COUI\ T l\EPOR TS [19851 3 s.c.R.

Allahabad Municipal Board. That apart it again moved the Government for acquiring the land of the petitioner under the pretext that it is needed for constructing a museum. When the facts counter-indi cated the purported need, it came out with a suggestion that it pro posed to construct Natyashalaa:nd 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 wonld.

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 pur pose for acquiring the land.

Mr. Kacker urged that quitting the quibbling so far resorted to, the Court may examine a forthright submisson that the Sam• melan's interest in getting the land acquired is not merely to con struct Sangrahalya bnt it is equally if not more interested in not having a cinema theatre at the place where it is being constructed.

Shorn of embellishment, the Sam me Ian would not tolerate the theatre and therefore when it failed to thwart the grant of certificate of approval and cinema theatre came up, it took the second step to achieve the first mentioned object viz. seek acquisition of land to satisfy an imaginary or non-existent need.

The challenge on the ground of legal mala !ides to the validity of the notification under Sec. 4 (1), a preliminary tep in the process of acquisition has to be examined, evaluated and answered in the backdrop of these facts.

It can be stated without fear of contradiction that need of the land for Sangrahalya is a figment of imagination conjured up to provide an ostensible purpose for acquisition. There is enough land roughly admeasuring 7315 sq. yds. lying vacant and unutilised with the Sammelan for over a quarter of a century. The Sangrahalya has not come up though this was the land which was taken from the Municipal Board for the avowed object of putting up a Sangrahalya.

The Sammelan moved on to Rangamanch and Natyashala and then ultimately adopted a position that when the land is made available,

D!STT. MAGISTRA'I'B v. R.R. JAISWAL (Desai, J,) 1017

schemes will be devised for its pioper use. Could it be said with confidence that the Sammelan was ever interested in acquiring the land for effeCtiJating any of its objects. It has neither the plans nor the wherewith4fs'nor any specific object for which it needs land and it is unable to use over years the land already available at its dis posal. Therefore, Mr. Kacker took bold and to some extent an imaginative stand. He said that in seeking acquisition of the land, the Sammelan is actuated by a desire not to have the cinema theatre in its vicinity or if it has come into existence, to do away with the same. Wheri these facts stare into the face, can it be said with confi dence that the Government or the Collector in whom the power to acquire land is vested, exercised the power for the purpose for which it is vested or are they guilty of legal mala !ides.

. '

The High Court disposed of the contention by an over-simplification of this tangled web of facts without making the least attempt at unearthing the real motives of the Sammelan. The tell tale facts disclose motives and unravel hidden objects. The High Court by passed them by simply observing that there is nothing on record to indiCate that the Collector or the State Government are inclined to 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 Sammelliln 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 (I) 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 & 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 therefore, it wouU like to wish

HHS


away a cineina theatre in its vicinity. That hardly constitutes public purpose. We have already said about its proclaimed need of land for putting up Sangrahali a. It is an easy escape route whenever Sammelan wants to take over some piece of land. Therefore, it can be fairly concluded that the Sammelan was actuated by extraneous and irrelevant considerations in seeking acquisition of the land the statutory authority having known this fact yet proceeded to exercise statutory power and initiated the process of acquisition. Does this constitute legal mala fides ?

Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose.

And in this context 'in good faith' means 'for legitimate reasons'. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourabfe exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides.

In such a situation there is no question of any personal ill-will or motive: In Municipal Council of Sydney v. Comp'ell(1l it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab v.Gurdial Singh & Ors.(') acquisition of land for constructing a grain market was challenged on the ground of legal malafides.

Upholding the challenge this Court speaking through Krishna Iyer, J. explained the concept of legal malafides in his hitherto inimitable language, diction and style and observed as under :

"Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power .and oftentimes overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power hy simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legimate object the actuation or cataly

(t) [1925] A.C. 338 at 375.


blsu. MAGISTRATE v. R. it. JAlsWAL (Desai J.) ·· iot9

sation by malice is not legicidal. The action is bad where the trne object is to reach an end different from the one for which the power is entrnsted, 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 trnst-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 Jarid was sought to be acquired but in truth and reality, the Mandi. need was hijacked to reach the private destination of depriving an eneiny 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 sheer weight of personal clout. The District Magistrate was chagrined to swallow the bitter pill that .he was forced to acquire land even thougji he was personally convinced there was no need but a pretence. Therefore, disagreeing with the High Court, we are of the opinion that the power to acquire land was exercised for an extraneous and irrelevent purpose and it was colourable exercise of power, namely, to satisfy the chagrin and anguish of the Sammelan at the coming up of a cinema theatre in the vicinity of its campus, which it vowed to destroy. Therefore, . the impugned notification bas to be declared illegal and invalid for this additional ground.

The validiiy of the impugned notification was also challenged on the ground that even though the acquisition is for the Sammelan, a company, the notification was issued without first compiying with the provisions of rule 4 of the Land Acquisition (Companies) Rules,

1963. The High Court has negatived this challenge. We must frankly confess that.the contention canvassed by Mr. Nariman in this behalf would necessitate an indepth examination of the contention. However, we consider it unnecessary in this case to undertake this exerio26

SUPREME COURT RBP0RT$ • t19ss1 3 s.c.R..

A cise because the judgment of the High Court is being upheld for the additional reason that the acquisition in this case was mala fide.

Therefore, we do not propose to examine the contention under this head.

For the reasons which appealed to the High Court and for the additional reasons herein stated, the appeal preferred by the Collector and the District Magistrate and another fails and is dismissed while the appeal on the grant of special leave to the petitioner is hereby partly allowed to the extent herein indicated. Substantially, the Civil Appeal No. 2458 of 1975 fails and is dismissed with no orders as to costs.

Appeal dismissed and Petition a/low d.