Holding

Acquisition of the land does not satisfy the requirements of Section 40(1)(b) and therefore the appeals are dismissed.

Summary

The Kerala Government issued a notification under the Land Acquisition Act, 1894 to acquire a small parcel of land bearing a shop owned by K.K. Pankajakshy, alleging the need to provide a passage for the annual temple procession of Sree Jagannath Temple managed by Jnaneda Ya Yogam. The High Court held that the acquisition was for a society, not a public purpose, and therefore fell under Part VII of the Act, rejecting the claim that the work was akin to a hospital or library. On appeal, the Supreme Court examined whether the construction of an approach road for devotees satisfied Section 40(1)(b), which requires the work to be perennially and directly useful to the public, and whether reliance on astrologers' advice could justify the acquisition. The Court concluded that the need was not a genuine, permanent public purpose, that carving a passage for a once‑a‑year procession does not meet the statutory criteria, and that astrological considerations are irrelevant. Consequently, the appeals were dismissed.

Issues considered

Whether acquisition of land for constructing an approach road to a temple procession by a society falls within Section 40(1)(b) of the Land Acquisition Act, 1894.
Whether the proposed work is perennially and directly useful to the public as required by Section 40(1)(b) and Section 41(5).
Whether reliance on astrologers' advice can constitute a valid basis for acquisition under the Act.

Legislation cited

Land Acquisition Act, 1894s. 17(4), s. 3(j), s. 4, s. 40(1)(b), s. 41(5), s. 5A
Societies Registration Act, 1860

Subjects

Land acquisitionPublic purposeSection 40(1)(b)ConstructionTemple processionAstrologySocietyKerala

Judgment

A JNANEDA YA YOGAM AND ANR.
v.
K.K. PANKAJAKSHY AND ORS.

( >
OCTOBER 28, 1999

B [S.B. MAJMUDAR AND U.C. BANERJEE, JJ.]

Land Laws:

Land Acquisition Act, 1894:
c Sections 3(j), 4 and 40-Acquisition-For society-Held: Does not fall
within the definition of 'public purpose '-Such acquisition will be governed
by Part VII of the Act.

Section 40(b) and 4/ (5)-Acquisition-For company-Conditions for-
D Construction work-Held: Should be perennially and directly useful to the
public-Should not be of a sporadic or of a temporary nature-Such work has
to be finished within the time schedule laid down by S.41(5)-Conditions on
which the work has to be executed and maintained are also to be laid down--
Maintenance of such has to be on a permanent basis.

E Section 40(/)(b)-Acquisition--For company-Consent-Grant of-Held: Before
giving such consent appropriate Government should be satisfied that acquisition
is needed for construction of some work by concerned company-And that
such work is likely to prove useful to the public.

Acquisition-8cope of-Held: Work concerned need not be restricted to
F hospital, public reading room or library-8uch restriction will result in
unduly. limiting the wide scope of S.40(/)(b).

Approach road-For temple-Acquisition of land for-Validity of-
Held : Approach road to the temple is to be iaid on a permanent basis for
G perennial use of the members of the public, being devotees-It is immaterial
if it is utilised every year on a single occasion--Such acquisition will
nevertheless be for construction of some work likely to prove directly useful
to the public.

Approach road-For temple-Acquisition of-Diversion of route-Not
H 216
JNANEDA YA YOGAM v. K.K. PANKAJAKSHY 217
· suitable from astrologers' point of view-Acquisition based on such view- A
Validity of-Held : It is merely a sentimental approach-Acquisition of such
land under such circumstances is not valid-No valid acquisition under the
Act can be based on astrologers' satisfaction only.

Construction-Meaning of-Held : Construction does not necessarily
mean construction over the land, which must rise above the surface of the B
land in all contingencies-Hence, work of carving out a passage certainly
amounts to construction.

Words and Phrases:

"Public purpose"-Meaning of-In the context of S.3(j} of the Land C
Acquisition Act, 1894.
J
"Construction"-Meaning of-In the context of S.40(/)(b) of the Land
Acquisition Act, 1894.

Kerala State Government issued a notification under Section 4(1) read D
with Section 17(4) of the Land Acquisition Act, 1894 for acquisition ofa piece
ofland, wherein stood a pucca built shop, belonging to the respondent, for a
public purpose for providing passage for procession of devotees to a temple.

Respondent filed a writ petition before the High Court challenging the E
aforesaid notification. The High Court allowed the writ petition holding that
the acquisition was not for a 'public purpose' under Section 40(l)(b) read with
Section 3(f) but for a 'company' or for a society like the appellant's and,
therefore, the acquisition was governed by Part VII of the Act and,
consequently, Section 17(4) dispensing with Section 5-A enquiry could not
get attracted. The High Court further held that for application of Section F
40(l)(b) of the Act the work should be like hospital, public recreation room
or library. Hence this appeal.

On behalf of the appellant it was contended that the approach road to
the temple could not be diverted in view of the advice of the astrologers that G
only the old route was a sanctified route.

Dismissing the appeal, the Court

HELD : l. Admittedly, the impugned acquisition is for a society, which
is managing the temple, in question. Therefore, acquisition for the purpose H
218 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A of the said society would not fall within the definition of 'public purpose' as
per Section 3(f) of the Land Acquisition Act, 1894. Such an acquisition will
be governed by Part VII of the Act, which deals with acquisition of land for
companies. (222-B; 223-81

2.1. A conjoint reading of Sections 40(1)(b) and 41(5), leaves no room
B for doubt that the construction of such work of the company must be of such
nature that it should be perennially and directly useful to the public and should
not be of a sporadic or of a temporary nature. In other words, it should be
permanently useful to the public for all times to come and the public can
directly use that work constructed by the company as and when occasion
C arises. Such work has to be finished within the time schedule laid down by
Section 41(5) and conditions on which the work has to be executed and
maintained are also to be laid down. Maintenance of such work by the company
for supporting the acquisition in question necessarily means maintenance
on a permanent basis. (224-H; 225-A, BJ

D 2.2. Before the appropriate Government can give consent for acquisition
of land it had to be satisfied that such acquisition was needed for construction
of soine work by the concerned company and that such work is likely to prove
useful to the public. [224-DJ

3. The reasoning adopted by the High Court for applicability of Section
E 40(1 )(b) of the Act, that the work concerned should be like hospital, public
reading room or library, would result in unduly limiting the wide scope of
Section 40(1 )(b). [225-D I

4. Work .>f carving out a passage would certainly amount to construction
F of the passage in question. Construction does not necessarily mean
construction over the land, which must rise above the surface of the land in
all contingencies. (226-BJ

.5. Permissible acquisitions for the company under Part VII of the Act
would be those types of acquisitions where the land sought to be acquired on
G a permanent basis must be required to be utilised for construction of works
which are directly useful to the public. (226-H; 227-AJ

R.l. Arora v. State of U.P., Am (1962) SC 764 and State of W.B. v. P.N.
Talukdar, AIR (1965) SC 646, relied on.

H 6. It is merely the sentimental approach of the temple authorities, solely
JNANEDAYA YOGAM v. K.K. PANKAJAKSHY [S.B. MAJMUDAR, J.] 219
depending upon the astrologers' information, which was made the sole basis A
.. for support the acquisition in question. It is easy to visualise that different
astrologers' opinions can be contradictory even on given facts. That can
certainly not be treated to be a genuine need for public when suitable passage
for movement of the procession can be easily obtained on spot without
disturbing or demolishing the respondent's shop. A little diversion of the route B
cannot, therefore, be held to be an impermissible possibility nor can the
insistence by the astrologers not to divert the route can be taken to be a
genuine need for construction of the road only by cutting across the
intervening shop of the respondent so as to justify acquisition proceedings
under Section 40(l)(b) of the Act. Therefore, there is no escape from the
condition that the so-called need for having a passage only through the land C
on which the respondent's structure stands was not a genuine and felt need
for construction of the road for the use of the public. (228-H; 229-A, B, CJ
6.2. The State Authorities could not have validly reached such a
subjective satisfaction on the relevant objective facts. It remained in substance
subjective satisfaction of astrologers consulted by the appellant-society. No D
valid acquisition under the Act can be based on astrologers' satisfaction only.
Such type of satisfaction is de hors the scheme of Section 40(l)(b) of the Act
(229-D)

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
6126-27 of 1999. E
From the Judgment and Order dated 27.1.95 of the Kerala High Court
in W.A. No. 377 and 400 of 1990.

T.L.V. Iyer, S. Balakrishnan, S. Prasad, Vipin Nair and R.N. Keshwani for
the Appellants.
F
Govindha K. Bharathan, Roy Abraham and Ms. Baby Krishnan, for the
Respondent No. I.

G. Prakash and Ms. Rahana V.M. for the State of Kerala.

The Judgment of the Court was delivered by G
S.B. MAJMUDAR, J. Leave granted.

By consent of learned counsel for the parties, we have heard these
appeals finally and the same are being disposed of by this common judgment.
A writ petition was filed in the Kerala High Court by common Respondent H
220 SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R.

A no. I herein. She challenged the notification issued by the State of Kerala
under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as
'the Act'). The said notification dated 22nd March, 1988 issued under Section
4 of the Act provided that land admeasuring 0.028 cents situated in Kodiyeri
village in Tellicherry Taluk of Cannanore District was needed or likely to be
needed for a public purpose for providing passage to Pallivetta procession
B of Sree Jagannath Temple, Tellicherry. The said notification was issued under
Sub-section (I) of Section 4 read with Section 17(4) of the Act. It is this
notification which was successfully challenged by Respondent no. I before
the High Court in her writ petition wherein the present appellants were joined
as Respondent nos. 4 and 5 while the State Authorities were joined as
C Respondent nos. I, 2, 3 and 6. The case of Respondent no. I before the High
Court in the writ petition was to the effect that she is the owner and is in
possession of the land in dispute being R.S.No. 38/1. That she had purchased
the property by a registered assignment deed No. 1899 of 1978. At a distance
of about !km from Respondent no. I's property is situated Sree Jagannath
Temple, which was established by Shri Narayana Guru in 1906. The saict
D temple was managed by the present Appellant no.I- Orginial Respondent no.
4, while present common Appellant no. 2- Original Respondent no. 5 is the
President of the said Sree Jnanedaya Yogam. As part of the festival in the
Jagannath Temple, a Pallivetta (Royal Hunt) is performed on the penultimate
day of the festival. every year. The said festival is being held in the month
E of March every year. It is performed at a place situated to the south of first
respondent-writ petitioner's property. On that occasion, the deity is taken out
on an elephant in procession to the place where the Pallivetta is performed.
This religious function lasts for an hour. In the said function, the deity is
taken down from the back of the elephant and placed at the appointed site
and the devotees and the priests perform religious ceremony for propitiating
F the deity and a pumpkin is being cut at the said place to ward off evil spirits
and for earning religious merit. According to Respondent no. 1- writ petitioner,
there is no fixed route through which the elephant carrying the idol and the
procession of devotees, passes every year on the aforesaid occasion. At the
instance of the present appellants, a part of Respondent no. I's land, wherein
G stands a pucca built shop, was sought to be acquired under the aforesaid
impugned notification for having a passage for the elephant carrying the idol
on the occasion of the aforesaid religious function and the said requirement
for the passage of the elephant was for one hour every year in the month of
March.

H The said notification was challenged on diverse grounds before the
JNANEDAYA YOGAM v. K.K. PANKAJAKSHY [S.B. MAJMUDAR, J.] 221

learned Single Judge of the Kerala High Court. The learned Single Judge, after A
hearing the parties, allowed the original petition and held that when acquisition
was not for 'public purpose', but for a 'company' or for a society like
Appellant no.I, the acquisition was governed by Part VII of the Act and
consequently, Section 17(4) dispensing with Section 5-A enquiry could not
get attracted.
B
Being aggrieved by the decision of the learned Single Judge, present
Appellant no.I - Original Respondent no. 4, filed Writ Appeal No. 377/1990
before the Division Bench of the High Court, while original Respondent nos.
1, 2, 3 and 6 filed Writ Appeal No. 400 of 1990 challenging the very same
judgment of the learned Single Judge. Both these appeals were heard together C
by the Division Bench of the High Court and by a common Order dated
27.1.1995, the Division Bench of the High Court dismissed both the appeals.
That is how original Respondent nos. 4 and 5 in the writ petition have filed
these appeals on leave granted by us.

Learned senior counsel for the appellants vehemently contended that D
the Division Bench of the High Court was in error when it took the view that
the impugned acquisition proceedings were not governed by Section 40
(I)(b) of the Act. It was submitted, placing reliance on the two decisions of
this Court, in the case of R.L. Arora v. The State of Uttar Pradesh and
Others, [AIR (1962) SC 764 and in the case of State of West Bengal and E
Others etc. v. P.N. Talukdar and other etc., AIR (1965) SC 646, that even
if acquisition was for a society, represented by the Appellants-Original
Respondent nos. 4 and 5, who were acting on behalf of the temple for
providing a route for the procession of the deity for approaching ~he place
where the religious ceremony was to be performed, it could squarely attract
.Section 40 (I) (b) of the Act and as the appellants had complied with the F
provisions of Section 41 of the Act in this connection, the impugned
acquisition ought to have been upheld by the High Court. That the Division
Bench had erred in taking the view that Sections 40 and 41 can apply if
acquisition is for the purpose of construction of works like hospital, public
reading room, library or any educational institution open to public. or such G
other work as the public may directly use and, therefore, providing an
approach road for going to the place of religious festival would not amount
to construction of any work directly useful to the public.

Learned counsel for Respondent no. I, who is the main contesting
party, on the other hand, submitted that the learned Single Judge and the H
222 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A Division Bench have rightly set aside the acquisition proceedings by holding
that providing for a passage for the religious procession could not be covered
by Section 40( I) of the Act.

In the light of the aforesaid rival contentions, it is necessary to have
a look at the relevant provisions of the Act. It is not in dispute between the
B parties that the impugned acquisition is for a society which is managing
the temple in question. Therefore, acquisition for the purpose of the said
society would not fall within the definition of 'public purpose' as per Section
3 (f) of the Act. The said definition as amended by Act 68 of 1984, reads
as follows:-

C "(f) the expression "public purpose" includes-
(i) the provision of village sites, or the extension, planned
development or improvement of existing village sites;
(ii) the provision of land for town or rural planning;
D (iit) the provision of land for planned development of land from
public funds in pursuance of any scheme or policy of Government
and subsequent disposal thereof in whole or in part by lease,
assignment or outright sale with the object of securing further
. development as planned;
(iv) the provision of land for a corporation owned or controlled by
E
the State;
(v) the provision of land for residential purposes to the poor or
landless or to persons residing in areas affected by natural
calamities or to persons displaced or affected by reason of the
implementation of any scheme under taken by Government, any
F local authority or a corporation owned or controlled by the
State;
(vi) the provision of land for carrying out any educational, housing;
health or slum clearance scheme sponsored by Government or
by any authority established by Government for carrying out
G any such scheme, or with the prior approval of the appropriate
Government, by a local authority, or a society registered under
the Societies Registration Act, 1860 (21 of 1860), or under any
corresponding law for the time being in force in a State, or co-
operative society within the meaning of any law relating to co-
operative societies for the time being in force in any State;
H
JNANEDAYA YOGAM v. K.K. PANKAJAKSHY [S.B. MAJMUDAR, J.] 223

{vii) the provision of land for any other scheme of development A
sponsored by Government, or, with the prior approval of the
appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public
office,
but does not include acquisition of land for companies; B
Such acquisition, therefore, will be governed admittedly by Part VII of the Act
which deals with acquisition of lands for companies. Section 3 (e) of the Act
defines the expression "Company" to mean, amongst others, a society
registered under the Societies Registration Act, 1860, or under any
corresponding Jaw for the time being in force in a State, other than a society C
referred to in clause (cc). Appellant society is registered under the Societies
Registration Act, 1860. We have, therefore, to turn to the procedure regarding
acquisition of lands for a company. They are found in Part VII of the Act.

Section 39 of Part VII reads as follows:-
D
"Previous consent of appropriate Government and execution of
agreement necessary.-The provisions of [sections 6 to 16 (both
inclusive) and sections 18 to 37 (both inclusive)] shall not be put in
force in order to acquire land for any Company, [under this Part]
unless with the previous consent of the appropriate Government nor E
unless the Company shall have executed the agreement hereinafter
mentioned."

It must, therefore, be held that the High Court has rightly considered the
applicability of Part VII to the present acquisition proceedings. Once that
conclusion is reached, Section 40 of Part VII of the Act would directly get F
attracted. The said section reads as follows:-

"40. Previous enquiry:- (1) Such consent shall not be given unless the
[appropriate government] be satisfied, [either on the report of the
Collector under section 5A, sub-section (2), or) by an enquiry held as
hereinafter provided, G
(a) that the purpose of the acquisition is to obtain land for the
erection of dwdling houses for workmen employed by the
Company or for the provision of amenities directly connected
therewith, or
{aa) that such acquisition is needed for the construction of some H ·
224 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A building or work for a company which is engaged or is taking
steps for engaging itself in any industry or work which is for a -·
public purpose; or

(b) that such acquisition !s needed for the construction of some
work and that such work is likely to prove useful to the public.

(2) Such enquiry shall be held by such officer and at such time and
place as the [appropriate Government] shall appoint.

(3) Such officer may summon and enforce the attendance of
witnesses and compel the production of documents by the
same means and, as far as possible, in the same manner as is
c provided by the [Code of Civil Procedure, 1908] in the case of
a Civil Court."

It, therefore, become obvious that before the appropriate Government
i.e., the State of Kerala could have given consent for acquisition of land
D for Appellant no. I, it had to be satisfied that such acquisition was needed
for construction of some work by Appellant no. I and that such work was
likely to prove useful to the public. Now, it becomes clear as laid down by
Section 40 (I) (b) of the Act that if acquisition is to be made for a 'company'
like Appellant no. I it has to be shown that the purpose of acquisition is:-

E (I) for construction of some work by Appellant no. I; and

(2) that such work is likely to prove useful to the public.

In this connection, Section 41 (5) becomes relevant. It reads as follows:-

"where the acquisition is for the construction of any other work, the
F time within which and the conditions on which the work shall be
executed and maintained, and the terms on which the public shall
be entitled to use the work."

When the acquisition is for the company for construction of some work as
G laid down by Section 40 (I )(b ), the company concerned has to enter into an
agreement with the appropriate Government. As required by Section 41 (5),
the company has to satisfy the appropriate Government about the time within
which and the conditions on which the work shall be executed and maintained,
and the terms on which the public shall be entitled to use the work. A conjoint
reading of Sections 40 (I) (b) and 41 (5), leaves no room for doubt that the
H construction of such work for the company must be of such nature that it
JNANEDAY A YOGAM v. K.K. PANKAJAKSHY [S.B. MAJMUDAR, J.] 225
should be perennially and directly useful to the public and should not be of A
a sporadic or of a temporary nature. In other words, it should be permanently
useful to the public for all times to come and the public can directly use that
work constructed by the company as and when occasion arises. Such work
has to be finished within the time schedule laid down by Section 41 (5) and
conditions on which the work has to be executed and maintained are also to B
be laid down. Maintenance of such work by the company for supporting the
acquisition in question necessarily means maintenance on a permanent basis.
Learned counsel for Respondent no. I contended that providing for a passage
for a decorated elephant carrying the idol of the deity followed by the
procession for devotees only once in a year at time of festival and for which
purpose the land in question has to be required for not more than an hour C
every year, cannot amount to any need for construction of such work, which
has to prove permanently useful to the public for all the year round or even
for an indefinite period in future.

It is difficult to appreciate this extreme contention. On the other hand, D
, learned senior counsel f'or the appellants was right when he contended that
the reasoning adopted by the Division Bench of the High Court in the
impugned judgment for applicability of Section 40 ( 1) (b) of the Act, that the
work concerned should be like hospital, public reading room or library, would
result in unduly limiting the wide scope of Section 40 (I) (b). It cannot be
doubted that if premises of the temple are landlocked, and a passage is to be E
carved out from the surrounding land so that devotees representing a class
of public can approach the place ofreligious worship may be even once every
year, acquisition of appropriate surrounding land for that purpose can squarely
be covered by Section 40 ( 1) (b) as such a permanent carving out of passage
by levelling the acquired land can legitimately be treated to be construction
of work directly useful to the public. With respect, the Division Bench has F
too narrowly construed the terminology employed by the legislature in Section
40 (1) (b). It must, therefore, be held that if a approach road to the temple or
the place where religious ceremonies are to be performed is to be laid on a
permanent basis for perennial use of the members of the public, being
devotees, even if to be utilised every year on a single occasion for approaching G
the place of religious worship, then acquisition of such land would be for
construction of some work which is likely to prove directly useful to the
public, as the members cif the public, being devotees, can walk over the said
constructed approach road for all times to come for going to the religious
place concerned.
H
226 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A Learned counsel for Respondent no. I vehemently contended that
acquisition for having the passage for enabling the elephant and the procession
to go towards the southern side for reaching the destination, cannot be
considered to be for construction of any work for the company, including the
society, in the present case as laying of passage is not construction of any
B work. It is not possible to agree with this contention.

Work of carving out a passage would certainly amount to construction
of the passage in question. Construction does not necessarily mean
construction over the land which must rise above the surface of the land in
all contingencies.. It cannot be held that for this type of need, the acquisition
C proceedings could not have been resorted to at all.

In this connection, we may now refer to the two decisions of this Court
on which strong reliance was placed by learned counsel for the appellants.
In the case of R.L .. Arora v. The State of Uttar Pradesh and others (supra),
a Constitution Bench of this Court speaking through Wanchoo J. for the
D majority, had to consider the question whether acquisition of land required
by a company for construction of textile machinery parts could be supported
under the relevant provisions of the Act. While deciding the said question,
Wanchoo J., in para 12 of the report observed that the interpretation of the
material tenns in Section 40 (I) (b) and the fifth tenn of the agreement
provided in Section 41 read together is and must always be within the
E jurisdiction of the Court. Repelling the contention that the words of Section
40 (I) (b) could pennit acquisition for some work which could make the
ultimate product of the work useful to the public, it was held in para 14 of
the report that the work should be directly useful to the public and the
product of the work, even though useful to the public, would not amount to
F the work being directly useful to the public.

In the c~e of State of West Bengal and Ors. etc. v. P.N Talukdar and
others etc. (supra), Wanchoo J., speaking for a three Judge Bench of this
Court, had once again to interpret Section 40 (I) (b) of the Act. In the light
of the said provision, it was held that construction of hostel building and
G playground obviously meant for students of the institution, being a section
of the public;\was an activity which was directly useful to that section of the
public but acquisition for the construction of staff quarters of the company
cannot be said to be directly useful to the public as they were meant for
occupation of individual members of the staff.

H The aforesaid decisions clearly indicate that permissible acquisitions for
JNANEDAYA YOGAM v. K.K. PANKAJAKSHY [S.B. MAJMUDAR, J.) 227

the company under Part VII would be those type of acquisitions where the A
land sought to be acquired on a permanent basis must be required to be
utilised for construction of work which are directly useful to the public.

-
According to learned counsel for the appellants on the facts of the present
case, it can be said that when devotees pass by the road or passage to be
carved out for permitting the religious procession to move towards the place B
of festival, the· said construction of road would amount to construction of a
work directly useful to the public. We find considerable force in this contention.
To this extent, the decision of the Division Bench with respect is erroneous.

One aspect of the matter which stares in the face has to be kept in view.
The procession accompanying the elephant carrying the idol of the deity, C
may require an appropriate passage for reaching the destination. That need
may not be a continuous need as such. A festival may take place once in
a year. However, for laying down such a passage if any construction intervenes
• and has to be demolished it i:annot be said that such a requirement is of a
sporadic nature or could be met by requisitioning the premises from time
to time every year. It is easy to visualise that once the passage is cleared by D
demolishing the shop for allowing the procession along with the elephant
to pass over the said land in a given year, next year when the occasion arises
the same shop, if permitted to be re-constructed in the meantime, will have
again to be demolished. That would create an impossible situation not
beneficial to anyone. For such a purpose, therefore, even though the E
requirement may be repeated every year and may be even for one hour in
the month of March each year, the need for keeping such a passage open
would be a perennial need and obviously will be of a permanent nature.
Such requirement cannot be met by merely requisitioning the premises from
time to time every year but the land over which the passage has to be carved
out has to be kept open throughout the year and, therefore, must vest in the F
authorities by following the procedure of acquisition, if legally permissible. It
is not possible to agree with the contention of learned counsel for the
Respondent no. I that such a need is a temporary need which would, if at
all, call for requisitioning the land from time to time instead of resorting to
the procedure of acquisition. G
We may now proceed to consider the legality of the impugned acquisition.
In our view, on the peculiar facts of this case, basic requirements of S~tion
40 sub-section 1(b) of the Act are not met at all. The reason is obvious. The
site plan placed before us by both sides, and on which there is no dispute,
shows that, the main road over which the procession has to proceed on spot H
228 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A is on the northern side. The respondent no. l's disputed land is situated on
the southern side of the main road. There is a fence put up by the respondent
over her land and leaving the compound land the respondent has put up a
residential house in one corner of her land and there is a row of shops built
up by her facing the main road towards the north just touching the main road
B on the Northern side. The last shop touching the main road is constructed
on the disputed land which is sought to be acquired. The destinatjon of the
procession is on further southern side of the respondent land. For reaching
that destination where the procession has to end and the idol has to be taken
down from the elephant's back for carrying out the religious ceremony, the
procession has necessarily to go through the open land adjoining the
C respondent's compound land. The respondent's learned counsel, on instruction,
made it clear that the respondent will have no objection in allowing the
procession along with the elephant to go through the open land in her
compound for approaching the southern side and for reaching the destination.
For that purpose, instead of cutting across her last shop in the row, the
D procession can divert its route by five to ten feet on further right hand side
while going towards South and can go through her compound land for
reaching the destination. This little diversion of the road may save her shop
without in any way hindering the procession for reaching the destination. In
our view, the said stand of the respondent is quite fair. In fact, such an
alternative route could have been suggested before the acquiring authorities.
E However, as procedure of Section 5A for the Act was dispensed with, the
acquiring authorities got no opportunity to consider the alternative route
suggested by her. It is obvious that such an alternative route would have
satisfied the requirements underlying the acquisition proceedings for ensuring
a convenient passage for the procession along with the elephant. Such
procession could have easily utilised such alternative route without disturbing
F and cutting across the respondent's existing shop on spot. When we put this
to the learned senior counsel for the appellants, he stated that on principle
there may not have been any objection on this aspect but for the fact that
astrofogers consulted by the appellant temple have advised that the route of
the procession cannot be changed and it is only the old route which is a
G sanctified route. Now it is easy to visualise that this stand of the appellant
clearly shows that the so called need for having the passage for the movement
of the elephant and the procession. only through the acquired land after
demolishing Respondent no. I's shop is not a genuine need of the temple or
for that matter of the members of the public, who are the devotees and who
would join in the procession every year. It is merely the sentimental approach
H of the temple authorities, solely depending upon the astrologers information
JNANEDA YA YOGAM v. K.K. PANKAJAKSHY [S.B. MAJMUDAR, J.] 229

which was made the sole basis for supporting the acquisition in question. It A
is easy to visualise that different astrologers opinions can be contradictory
even on given facts. That can certainly not be treated to be a genuine need
for public when the suitable passage for movement of elephant and the
procession can be easily obtained on spot without disturbing or demolishing
the shop. A little diversion of the route cannot, therefore, be held to be an
impermissible possibility nor can the insistence by the astrologers not to B
divert the route can be taken to be a genuine need for construction of the
road only by cutting across the intervening shop of the respondent so as to
justify acquisition proceedings under Section 40(1)(b) of the Act. On the facts
of the present case, therefore, there is no escape from the conclusion that the
so-called need for having a passage only through the land on which the C
respondent's structure stands was not a genuine and felt need for construction
of the road for the use of the public.

The State Authorities could not have validly reached such a subjective
satisfaction on the relevant objective facts. It remained in substance subjective
satisfaction of astrologers consulted by the appellant-society. No valid D'
acquisition under the Act can be based on astrologers' satisfaction only.
Such type of satisfaction is dehors the scheme of Section 40( I )(b) of the Act.

Once this conclusion is reached, it becomes obvious that the final
decision rendered by the Division Bench of the High Court would remain
well sustained, though on entirely a different line of reasoning indicated E
herein-above, and not on the line of the reasoning which appealed to the
High Court and which, in our view, with respect, is not the correct exposition
of the basic requirement of Section 40(1 )(b) of the Act.

- In the result, the a-ppeals fail and are dismissed. In the facts and F
circumstances of the case, there will be no order as to cost.

v.s.s. Appeals dismissed.