BAJIRAO T. KOTE (DEAD) BY LRS. AND ANR.versusSTATE OF MAHARASHTRA AND ORS.

           BAJIRAO T. KOTE (DEAD) BY LRS. AND ANR.                            A
                                    v.
                STATE OF MAHARASHTRA AND ORS.

                          DECEMBER 8, 1994

          [K. RAMASWAMY AND K.S. PARlPOORNAN, JJ.]                            B
                                                                  .
     Land Acquisition Act, 1894: Section 4(1) Notification published in
Gazette for acquiring certain lands and house for public trust Saibaba
Sansthan Shirdi-Public purpose-Whether vague Held: No. Failure to
purchase the land by negotiation and subsequent exercise of power under
S.4(1) Held: No mala fide or colourable exercise ofpower-No infirmity or C
illegality in the notification published 'Public purpose '-Existence of-
Primiarily Government has to decide-Courts not to evaluate evidence and
come to conclusion unless there is mala fide or colourable exercise of
power.

    The Respondent Government published a Gazette notification D
under S.4 (1) of the Land Acquisition Act, 1894 on October 11, 1972
acquiring the land including House No. 594/B admeasuring about 25'
X25' for public trust "Saibaba Sansthan Shirdi", the validity of which
was challenged by the appellants by way of a Writ petition. The High
Court rejected the petitions. Hence this appeal.                       E

     Appellants contended that the specification of "public purpose" in
the notification was vague and the acquisition was not for a public
purpose; that the right of objection statutorily given to the owner of the
land under S.5-A of the Land Acquisition Act should not be made
illusory by vague statement of public purpose and that it was in fact a       F
colourable exercise of the power and vitiated on the ground of
vagueness. The appellants also contended that the acquisition would
result in denying their livelihood, offending their right to life, and that
no useful purpose would be served by acquiring such a small piece of
land for a large project.
                                                                              G
    Dismissing the appeal, this Court

    HELD: 1.1. It is seen that the public trust Saibaba Sansthan-
Shirdi, needs the land for the public purpose, namely two temples are
needed to be connected by a road through the land occupied by the
house sought to be acquired. It is true that Saibaba Temple at Shirdi is H

                                 413
    414                  SUPREME COURT REPORTS             [1994) SUPP. 6 S.C.R

A   run by a public trust maintaining Saibaba Temple at Shirdi and other
    temples and Dharamshala prayer Hall. Thousands of pilgri01s daily
    visit Saibaba Temple at Shirdi to pay their homage and seek blessings
    of the mystic secular saint Sri Saibaba. Each religion claims that he
    belongs to their faith but the great saint never proclaimed himself to be
    of a particular faith. Therefore, all sections of the people in India have
    great unflinching faith, devotion and absolute belief in him and every
    day thousands of pilgrims throng Shridi to pay their homage and seek
    his blessings. [420 D, E]

          1.2. It cannot be gainsaid that providing access to the temples is not
    a public purpose. The exercise of the power under Section 4(1) of the
c   Land Acquisition Act, therefore, is neither colourable nor mala fide.
    When the State Govt. exercised the pow~r under section 4(1) for a
    public purpose and the public purpose was mentioned therein, the
    exercise of the power cannot be invalidated on grounds of mala fides or
    colourable exercise of power so long as the public purpose is shown and
    the land is needed or is likely to be needed and the purpose subsists at
D   the time of exercise of the power. It is primarily for the State
    Government to decide whether there exists public purpose or not, and
    it is not for this Court or the High Courts to evaluate the evidence and
    come to its own conclusion whether or not there is public purpose
    unless it comes to the conclusion that it is a mala fide or colourable
    exercise of the power. In the instant case, even before the enquiry u/s.5-
E   A was conducted and a report submitted, the apellants had approached
    the High Court for quashing the notification published u/s. 4(1) of the
    Act. [421 F to H, 422 A, 420 CJ

        1.3. It is true that an attempt was made on an earlier occasion to
   purchase the property by negotiation but it was turned down by the
F Charity Commissioner and he refused to grant permission.
   Consequently, the trust was constrained to approach the government
   requesting it to acquire the land. The government did consider the
  ·circumstances and exercised that power. The Act does give the power
   to negotiate by private sale or even during pending acquisition
G proceedings, negotiations by private sale could be made in which event
   the need to determine the market value under the Act would be
   obviated and the compensation would be determined in terms of the
   agreement reached between the Land Acquisition Officer and the
   owner of the land or person having an interest in the land, subject to
   the prior approval of the Government. Therefore, the failure to
H purchase the land by negotiation and the exercise of the power under
                B. T. KOTE v. STATE [K. RAMASWAMY, J.]               415

section 4(1) thereafter, by no stretch of imagination, be considered to A
be a ma/a fide or colourable exercise of the power. Therefore, there is
no infirmity or illegality in the notification published under section 4(1)
warranting interference. [422 B to D]

     Smt. Somavanti and Ors.v. The State of Punjab and Ors., [1963] 2
SCR 774; VM Soneji And Anr. v. State of Bombay (Now Gujarat) and B
Ors., [1964) 3 SCR 686; Ratilal Shakarabhai and Ors., v. State of Gujarat
and Ors, [1970] 2 SCC 264; Jage Ram and Ors., v. State of Haryana and
Ors., [1971] 3 SCR 871; Gopal Krishan Das, v. Sailendera Nath Biswas
and Anr., [1975] 1 SCC 815; Babu Singh v. Union ofIndian AIR 1979 SC
1713 and Abdul Husein Tayabali and Ors. v. State of Gujarat and Ors.,
[1968] 1 SCR 797, relied on.                                              C
    Srinivasa Co-op. House Building Society Ltd, v. Madam Gurumurthy
Sastry and Ors., JT (1994) 4 SC 197; and MP. Housing Board, v. Mohd
Shafi and Ors., [1992] 2 SCC 168, distinguished.

    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 383of1980.              D
   From the Judgment and Order dated 13.6.79 of the Bombay High
Court in W.P. No. 586of1979.

    Ramji Srinivasan, Mrs. P.S. Shroff, Mrs. Monica Sharma and      s:s.
Shroff for S.A. Shroff & Co. for the Appellants.                           E
    V.N. Ganpule, A.M.       Khanwilkar and A.S.      Bhasme for the
Respondents.

    The Judgment of the Court was delivered by.

     K. RAMASWAMY, J. This appeal by special leave arises from the F
order of the High Court, Bombay dated June 13, 1979 in Writ Petition No.
587 of 1979. The Govt. of Maharashtra published in the State Gazette the
notification issued under Section 4 (1) of the Land Acquisition Act 1 of
1894 (for short, 'the Act') on October 11, 1972, acquiring the lands
including House No. 594/B admeasuring about 2::;'X25' for public trust G
"Saibaba Sansthan Shirdi", the validity of which was challenged by the
appellants in the writ petition. The Division Bench rejected their writ
petitions in limini. Thus this appeal.

    It is contended for the appeallants that the specification of the "public
purpose" in the notification is vague and acquisition for Saibaba Sansthan H
    416                   SUPREME COURT REPORTS                [1994] SUPP. 6 S.C.R

A   not for a public purpose. For the first time before the High Court, the
    respondents had disclosed in their counter affidavit, namely, that the land
    was needed for joining two temples, i.e. Saibaba and Dwaraka Mai Mandir.
    Even that also is of no public purpose, since those two temple have been in
    existence for well ovei years without any need for them to be connected.
    There is Iio specification either in the notification or in the counter affidavit
B   to disclose the purpose behind the proposed acquisition denying to the
    appellants an opportunity to effectively object to the acquisition. Right of
    objection statutorily given to the owner of the land under section SA of the
    Act should not be made illusory by vague statement of public purpose. It is,
    therefore, a colourable exercise of the power and also is vitiated on the
    ground of vagueness.
c
         It is also contended that by running the business of selling flowers in
    the house proposed to be acquired to the pilgrims and the small hotel being
    run there they would also serve public purpose of catering, to the pilgrims.
    The acquisition would result in their livelihood, offending their right to life.
    Attempts were made to purchase the property from the appellants by
D   negotiation which were turned down by the Charity. Commissioner by his
    finding that the purchase does not serve any public purpose. Therefore, the
    exercise of the power by the State under section 4 is ma/a fide and
    amenable to judicial review under Art. 226 and Art. 136 of the Constitution.
    It is· also further contended that for the construction of the huge
    Dharamshala, a resting room and Prachar Hall, the area under acquisition is
E   too small. The total extent is only 60sq. meter in all and no useful purpose
    will be served by acquiring such a small piece of land for a large project.

          These contentions have been refuted by Sri Ganpule, the learned senior
     counsel for the second respondent, Sansthan. The Questions, therefore, are
     whether the public purpose specified is vague and liable to be quashed on
F    that ground and whether notification published under section 4(1) of the
     Act is vitiated by ma/a fide or colourable exercise of the power. The
     notificaiton mentions thus; "Whereas it appears to the Commissioner,
    Poona Division that lands specified in the Schedule II hereto are likely to be
    needed for public purpose, viz., for public trust Saibaba Sansthan, Shirdi. It
G   is hereby notified under the provision of section 4 of the Land Acquisition
    Act, 1894 that the said land are likely to be needed for the purpose specified
    above". The question, therefore, is whether this notification is vague and
    the public purpose mentioned therein is liable to be quashed on that ground.
    The leading judgment of this Court in this behalf is the ratio laid down in
    Smt. Somavanti and Ors. v. The State of Punjab and Ors., [1963) 2 SCR
H   774. The facts therein were that the State of Punjab exercised the power
                 B. T. KOTE v. STATE [K. RAMASWAMY, J.]                    417

under section 4 (1) and issued the notification followed by the declaration       A
under section 6 that the land was likely to be needed by the government for
a public purpose, namely, for the "setting up of a factory" (elaborated later
on) for manufacturing various ranges of refrigeration compressors and
ancillary equipments. It was contended that the public purpose is a
colourbale exercise of the power and it is no public purpose and that,
therefore, the exercise of the power for the benefit of the company is a          B
colourable exercise of the statutory power offending their right to hold the
property under Art. 19(l)(g) of the Constitution. The Constitution Bench
per majority dealing with that question held at p. 80 I that the Act made no
attempt to define public purpose in a compendious way. Public purpose is
bound to vary with the times and the prevailing conditions in a given
locality and, therefore, it would not be a practical proposition even to          C
attempt a comprehensive definition of it. It is because of this that the
 legislature has left it to the Government to say what is a public purpose and
also to declare the need of a given land for a pubic purpose. At p. 804 it
was held that whether in a particular case the purpose for which land is
needed is a public purpose or not is for the State Govt. to be satisfied about.
Ifthe purpose for which the land is being acquired by the State is within the     D
legislative competence of the State, the declaration of the Government wiU
be fmal subject, however, to one exception. That exception is that ifthere is
a colourable exercise of power the declaration will be open to challenge at
the instance of the aggrieved party. Ifit apears that what the government is
satisfied about is not a public purpose but a private purpose or no purpose       E
at all, the action of the Govenment 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 be ·fmal. Therefore, the Constitution Bench upheld the notification
 when it was mentioned that the public purpose was for industrial
 development without any specification.
                                                                                  F
     In V.M Soneji and Anr. v. State of Bombay (Now Gujarat) and Ors.,
[1964] 3 SCR 686, another Constitution Bench considered the question,
when the notificaiton under section 4 (l) mentioned public purpose,
namely, "for State Transport Corporation." The contention therein also was
that it was vague and is a colourable exercise of power. The Constitution G
Bench negatived the contention and held that there is a clear declaration of
the government that the purpose of acquisition was a public purpose even
though the land was being acquiied for a corporation and not for the State.
The acquisition must nevertheless be said to be for public purpose. In
Ratilal Shakarabhai and Ors. v. State of Gujarat and Ors., [1970] 2 SCC
264, the facts were that the land was acquired for public purpose, namely, H
    418                  SUPREME COURT REPORTS               [1994] SUPP. 6 S.C.R

A   for housing scheme undertaken by a Cooperative Society registered under
    the Cooperative Societies Act and sanctioned by the State Govt. for the
    employees of a company. It was contended that the public purpose was
    vague. A bench of three Judges considered the question where it was vague
    and liable to be quashed? In paragraph 8, it was held that there was no
    sµbstance in the contention that the notification under sections 4 and 6 was
B   vague. They are similar to notifications usually issued under sections. 4 &6.
    Therein it is clearly mentioned that the proposed acquisition was for public
    purpose. Public purpose in question was also stated therein. In Jage Ram
    and Ors. v. State of Haryana and Ors., [1971] 3 SCR 871, a bench of two
    Judges was to consider whether the public purpose elaborated in the
    affidavit filed under the State Govt.that it was needed to start new industry
C   is vague and liable to be quashed. It was held that starting an industry is a
    public purpose. It is essentially a question that has to be decided by the
    government. There is no denying the fact that the starting of new industry is
    in public interest. Therefore it was held that the notification under section
    4(1) and the declaration under s. 6 were not vague.

D         In Gopal Krishan Das v. Sailendera Nath Biswas and Anr., [1975] 1
    sec 815, the facts therein were that the notification under s. 4 (1) was
    published for the public purpose of "construction of dispensary building
    and other institutions connected with E.S.I. Scheme". It was contended that
    it was colourable exercise of the power as the State Govt. did not apply its
    mind to matters in respect of which it ought to have been satisfied before
E   the declaration under s. 6 of the Act was made. Considering the effect of
    the notification a bench of three Judges held that it must appear to the State
    Govt. that the land sought to be acquired is needed or is likely to be needed
    for a public purpose before notification under section 4(1) is published. The
    notification under Section 4(1) and the declaration under section 6 were
    held to be valid. In Babu Singh v. Union of India, AIR ( 1979) SC 1713 at
F   1716, paragraph 7, a Bench of two Judges was to consider whether public
    purpose set out in the notification under section 4(1) and the declaration
    under section 6 were different from each other and the declaration thereby
    becomes invalid. Considering that question it was held that the notification
    under section 4(1) and the declaration under section 6 that the land was
    needed for the extension of soil conservation and other improvement work
G   in the catchment area of Sukhna Lake, Chandigarh and for raising a green
    belt around the capital was held to be public purpose and was not vague. In
    Srinivasa Coop. House Building Society Ltd v. Madam Gurumurthy Sastry
    and Ors., JT ( 1994) 4 SC 197, a bench of two judges, to which one of us
    (K.Ramaswamy, J.) was a member, considered the question whether
    acquisition for a private cooperative society was a public purpose.
H   Considering that question, this Court held that:
                   B. T. KOTE v. STATE [K. RAMASWAMY, J.]                     419

                "Public purpose is not capable of precise definition. Each A
                case has to be considered in the light of the purpose for
                which acquisition is sought for. It is to serve the general
                interest of the community as opposed to the particular interest
                of the individual. Public purpose broadly speaking would
                include the purpose in which the general interest of the
                society as opposed to the particular interest of the individual B
                is directly and vitally concerned. Generally the executive
                would be the best Judge to determine whether or not the
                impugned purpose is a public purpose. Yet it is not beyond
                the purview of judicial scurtiny."

       In that case it was found that since the acquistion was for a private
 coop. house building society_ not sanctioned by the State Govt., it was held         C
 that the acquisition was not for public purpose and that coop. society was
 also not a company. In MP. Housing Board v. Mohd Shafi and Ors.,
 [1992] 2 SCC 168, on which strong reliance was placed by the counsel for
 the appellant, the facts were that the notification issued under section 4 (I)
 did not specify any public purpose. The notification merely reads that the
 land detailed in the schedule attached thereto was required for a public             D
 purpose. The notification further disclosed tliat the State Govt. was being of
 the opinion that the provision of sub-section (I) of s. 17 was applicable in
 respect of the land required to be acquired , it dispensed with the enquiry
 under s.5-A of the Act. The schedule of the land was given. In that context
 a bench of three judges considered the controversy and had held that the
 latter elaboration that the land was acquired for the planned development            E
 under the M.P. Housing Construction Board was vague and that, therefore,
 it was not a public purpose. Accordingly the notification was quashed. It is
 seen that this Court consistently has taken the view that if the purpose has
 been mentidned in the notification as a public purpose, whether if
 "Specified" the public purpose or not, the court did not go behind the
 public purpose nor seek specification in the notification published under            F
 section 4(1 ). When declaration under sub-section (l) of s. 6 was published,
 the public purpose was held to be conclusive by operation of sub-section 3.
 of s. 6. If there is any vagueness and if it is specified in the counter affidavit
 or is evident from the record, it was also accepted by this court amplyfying
 the public purpose in the notification. If it is not a public purpose, i.e. to
 serve general interest but individual interest, it was held to be a colourable
 exercise of power. In MP. Housing Board's case as no mention was made                G
 of any public purpose in the notification issued under section 4(1 ), the
 subsequent clarification was not accepted by this Court. This Court did not
 lay down any law contrary to or inconsistent with the law laid down by the
 two Constitution Bench Judgments and successive three Judge Benches and
~two Judge Benches. Therefore, the ratio therein must be understood in the
 backdrop of the facts and renders little assistance to the appellants.               H
    420                  SUPREME COURT REPORTS               [1994] SUPP. 6 S.C.R ··

A        The contention that it is also a mala fide exercise of power has no legs
    to stand. In Abdul Husein Tayabali and Ors. v. State of Gujarat and Ors.,
    [1968] 1 SCR 797, a Bench of three Judges of this Court considered
    whether the State Govt. has exercised the power mala fide without applying
    its mind to the facts of the case. Considering the facts of that case and the
    allegations made in the petition and the counter affidavit filed by the State
B   Govt. explaining the circumstances in which the notification under sec_tion
    4(1) and the declaration under section 6(3) came to be published, it was
    held that it is not a mala fide exercise of the power. Enquiry under section
    SA was conducted and a report submitted thereunder was considered and
    then the declaration under section 6(1) was published. It is seen that in this
    case even before the enquiry_ under section SA was conducted and the
c   report submitted and the declaration under section 6(1) could be made, the
    appellants had approached the High Court and sought to have the
    notification published under section 4(1) quashed.

         It is seen that the public trust Saibaba Sansthan-Shirdi, needs the land
    for the public purpose, namely, two temples are needed to be connected by
D   a road though the land occupied by the house sought to be acquired. It is
    true that Saibaba Temple at Shirdi is run by a public trust maintaining
    Saibaba Temple at Shirdi and other temples and Dharamshala prayer Hall.
    Thousands of pilgrims daily visit Saibaba Temple at Shiridi to pay their
    homage and seek blessings of the mystic secular saint Sri Saibaba. Each
    religion claims that he belongs to their faith but the great saint never
E   proclaimed himself to be of a particular faith. Therefore, all section of the
    people in India have great unflinching faith, devotion and absolute belief in
    him and every day thousand of pilgrims throng Shirdi. to pay their homage
    and seek his blessings. Though physically he is not present, the devotees
    believe that he is still surviving.
F
         The land of India is known for such great saints and yogis hailing from
    different faiths. One good example is of two brothers; by name, Elder and
    Younger, bala-yogies in Mummidivaram village in East Godavari of Dist.
    Andhra Pradesh, the Elder one started his penance at the age of 16 and the
    younger one at the age of 7 years respectively. They stopped taking any
G   food and water and got locked themselves in two separately built ashrams
    from outside and the ·keys were kept in the custody of the District
    Magistrate. According to the wishes of the yogi, on Mahasivaratri day, in
    the midnight at the stroke of 12.00 without a watch, hissing sound would be
    heard and the doors were to be opened and the Elder yogi would give
    darshan to the devotees on a specially eracted platform at a distance of
H    SOOsq: yards and after 10 minutes the door from outside would be closed
                  B. T. KOTE v. STATE [K. RAMASWAMY, J.]                     421

  and he would get himself seated on the platform after 10 minutes and              A
  thereafter the closed platform would be opened and throughtout the day he
  would give darshan. The Elder yogi used to give darshan and retired back
  into Ashram on the next day midnight. Both brothers closed their eyes .
. There were neither windows to get air nor ventilators to exhaust air from
  inside. Keeping the ashram closed throughout the year without air, not only
  makes the life impossible to live but also bad odour would emit but               B
  contrarily when the doors were opened, perfume smell comes out from the
  rooms. They did their ceaseless penance for well over 40 years. It is a
  miracle that they surpassed human physiology and they know the latest
  technological development. Elder yogi started his penance even when
  electricity was not known in the villages. He knows the mechanism of
  electrical operations and explained new developments in the country by his        C
  signals since he observed only silence. It is highly impossible to walk when
  they always keep themselves seated with crossed legs. But within a short
  period of 5 to IO minutes, he used to reach the platform. It is also
  impossible to know how they know the latest technological developments
  when they closed the eyes and lock themselves in the Ashram. These
  revelation are inexplicable and how they survive doing penance for more           D
  than 40 years without taking any food and water and without excretions and
  bath. When the doors were opened, it was seen that they appeared as if they
  just had bath and had wet clothei: but nothing could be found. The entire
  room gives perfume smell. It is difficult to explain these miracles where
  from such perfume smell comes and not a particle of dust was found in the
  rooms. India has produced several such great saints and yogis but these are       E
  only illustrative.

       Be that as it may, it cannot be gainsaid that providing access to the
 temples is not a public purpose. The exercise of the power under section 4
 ( 1) of the Act, therefore, is neither colourable nor ma/a fide. It is true that   F
 this court in Tata Cellular v. Union of India, 1994 (3) Scale, 477, by a
 Bench of three Judges, considering the scope of judicial review of the
 administrative action (grant of licence by tenders) held that the
 administrative actions of the State or its instrumentalities are amenable to
 judicial review. As mentioned earlier when the State Govt. have exercised
 the power under section 4 (1) for a public purpose and the public purpose          G
 was mentioned therein, the exercise of the power cannot be invalidated on
 grounds of ma/a }ides or colourable exercise of power so long as the public
 purpose is shown and the land is needed or is likely to be needed and the
 purpose subsists at the time of exercise of the power. It is primarily for the
 State Government to decide whether there exists public purpose or not, and
 it is not for this Court or the High Courts to evaluate the evidence and come      H
    422                  SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A   to its own conclusion whether or not there is public purpose unless it comes
    to the conclusion that it is a ma/a fide or colourable exercise of the power.
    In other words the exercise of the power serves no public purpose or its
    serves a private purpose ..

         It is true that an attempt was made on an earlier occasion to purchase
B   the property- by negotiation but it was turned down by the Charity
    Comissioner and he refused to grant permission. Consequently, the trust
    was constrained to approach the government requesting it to acquire the
    land. The government did consider the circumstances and exercised that
    power. The Act does give the power to negotiate by private sale or even
    during pending acquisition proceedings negotiations by private sale could
C   be made in which event the need to determine the market value under the
    Act would be obviated and the compensation would be determined in terms
    of the agreement reached between the Land Acquisition Officer and the
    owner of the land of person having an interest in the land, subject to the
    prior approval of the Govt. Therefore, the failure to purchase the land by
    negotiation and the exercise of the power under section 4 (1) thereafter, by
D   no stretch of imagination, be considered to be a ma/a fide or colourable
    exercise of the power. Therefore, we do not find any infirmity· or illegality
    in the notification published under section 4 (1) warranting interference.
    Accordingly, the appeal is dismissed but without costs.

    G.N.                                                      Appeal dismissed