Supreme Court of India
LAND ACQUISITION COLLECTOR & ANR.versusDURGA PADA MUKHERJEE & OTHERS
- Citation
- 1980 INSC 158
- Decided
- 21 August 1980
- Disposal
- Appeal(s) allowed
- Bench
- Y V CHANDRACHUD
Holding
A declaration under Section 6 of the Land Acquisition Act is conclusive evidence of a public purpose unless the party alleging mala fide or colourable exercise of power proves such malice, and the burden of that proof rests on the alleging party.
Summary
The State Government of West Bengal issued three notifications under the Land Acquisition Act, 1894, to acquire land belonging to the respondents for what it claimed was a public purpose—first for the expansion of a private company's factory and later for industrial development. The respondents objected, alleging that the true purpose was private benefit to the company and that the notifications were issued in mala fide or colourable exercise of power. The High Court dismissed the respondents' writ petitions, but the Division Bench of the Calcutta High Court allowed the appeals, holding that the State had not produced evidence to rebut the presumption of a public purpose. The Supreme Court held that a declaration under Section 6 of the Act is conclusive evidence of a public purpose unless the party alleging mala fide or colourable exercise of power can prove it, and that the burden of such proof lies on the respondents. Since the respondents failed to discharge this burden, the Supreme Court set aside the High Court judgment, dismissed the respondents' petitions, and allowed the appeals.
Issues considered
- The effect of a declaration under Section 6 of the Land Acquisition Act as conclusive evidence of a public purpose.
- Whether the burden of proving mala fide or colourable exercise of power lies on the State or the landowner.
- Whether the State must produce documentary evidence to substantiate the public purpose claimed in the notifications.
Legislation cited
- Constitution of Indias. Article 133(1)(a), s. Article 226
- Land Acquisition Act, 1894s. 4, s. 5A, s. 6, s. 9
Subjects
Land acquisitionPublic purposeSection 6 declarationMala fideColourable exercise of powerBurden of proofIndustrial developmentConstitutional writ
Judgment
·573
A
LAND ACQUISffiON COLLECTOR & ANR.
v.
DURGA PADA MUKHERJEE & OTHERS
B
August 21, 1980
...... [Y. V. 0IANDRACHUD, C.J., S. MURTAZA FAZAL Au AND
A. D. KOSHAL, JJ.)
Land Ai:qltisiti~-~ -Act-Section 6--Declaration that land is required for a
public purpos~If conclusive evidence-Mala fides 'and colourable exercise of c·
power-Burden of proof-On whom lies-Burden of proving that land acquir~
ed is not suitable for industrial activity-On whom lies.
The· State Government issued a notification under Section 4 of the Land
Acquisition Act stating that the land referred to thereill was needed ·for a
public Ji7Urpose, namely, for expansion- of the factory_ o~ a Company at the·
expense of the company. On the respondents• objections that the purported D
purpose was· not a public purpose in that the land was being acquired for the
benefit of a company, the State Government issued another notification in.
tespect of the same land as also some more land stating that the land was
·needed for industrial development at public expense. Objections were again
raised by the land owners that though ostensibly the purpose was. a public
purpo!e in truth it was a private purpose, namely, for the benefit of a com...
pany. In cancellation of thei first notification the Government issued another E
notification under section 6. .
Dismissing the respondents' writ petitions under Article 226 a single Judge
of the High Court held that the industrial development of a particular area
was in itself a public purpose and no further details need be given in thei
notifications.
On appeal, a Division Bench of the !Ugh Court held that 3.lthough a decta:. . F
ration under section 6 was final and conclusive as to the need for acquisition
and as to the purpose being a public purpose, the aggrieved party could cbal·
. lenge a declaration only on the ground of mala tides and colourable ·exercise
of power and that in the instant case no such allegation had been made out.
The appeals wcie, however, allowed on the ground that the State Government
failed to produce evidence that the }and was being acquired for a public pur...
pose and not for the benefit of a company. · G
Allowing the appeals.
HELD: The High Court erred in accepting the appeals in view of its
finding that mala fides or colourable exercise of power on the part of the State
· Govern:nent had not been established.
1. It is weII~settled law that a declaration under section 6 of the Act H
shall be conclusive evidence that the land is needed for a public pur...
pose, the only exception to this being that the declaration was issued
mala fide or in colourable exercise of power. The third notification
16-647 S.C. India/80
574. SUPREME COURT REPORTS [1981) 1 S.C.R.
A in this case had to be taken at its face value in so far as the purpose
was concerned. [577 B; 578 BJ
2. The burden of proving mala fides or colourable exercise of p~wer is . ''(
on the party claiming the benefit of the exception, namely the respon-
. dents. This burden could nof be held to have been discharged by a
mere allegation in that behalf. [578 HJ
B 3. ·If the argument that it is for the State to satisfy the Court about the
nature of the purpose for which the land is sought to be acquired is
accepted the whole object of the provision under which the conclusive
presumption has to be raised iri regard to the nature of the purpose
would be defeated. It cannot, therefore, be held merely on the
strength of the absence of production of documentary evidence by the
State that the onus (which rested heavily on the respondents) to prove
c mala tides or colourable exercise of power on the part of the State
Government has been discharged.. [578 H, 579 A·B]
4. The respondents have produced no material to show that the assertion
about the public purpose .as stated in the third notification waa in·
correct for the reason that the acquired land was not suitable for any
industry· or that no industrial activity, except that by a company, had
D been undertaken in the neighbourhood of the acquired area~ There
/ is a clear averment to the contrary by the State which was not con·
traverted by the respondents and that cuts at the root of their plea
of mala tides or colourable exercise of power. [579 B-C; E],
'
CIVIL APPELLATE JURISDICTIO~: Civil Appeal Nos. 143-147 of
1970.
E
From the Judgment and Order dated 17-2-1967 of the Calcutta
High Court in Appeal from Original Order Nos. 123-127 of 1966:
D. N. Mukherjee and G. S. Chatterjee for the Appellants.
S. Balakrishnan and M. K. D. Namboodry for the Respondent.
B. Sen and D. N. Mukherjee for the Intervener•
. The Judgment of the Court was delivered by
• KosHAL, J.-By this judgment we shall dispose of Civil Appeals
Nos. 143 to 147 of 1970, all five of which have been filed by certi·
G. ficates granted under article 133(I)(a) of the Constitution by the High
Court of Calcutta and are directed against its common judgment dated
the 17th February, 1967 accepting five Letters Patent Appeals and, in
reversal of the judgment of a learned Single Judge, issuing a WTit of
i
!
mandamus directing the Land Acquisition Collector, Burdwan l!nd ·
the State of West Bengal to cancel or withdraw a notification dllted
H November 3, 1961 and another containing a declaration dated June 20,
1963 issued under sections 4 and 6 of the Land Acquisition Act (here-
inatter referred to as the Act) respectively.
J.
LAND ACQUISITION COLLECTOR v. DURGA PRASAD (Koshal, J.) 5 '7 5
2. The facts leading to the · litigation covered l:iy the appeals A
before us may be briefly stated. On February 12, 1960 a notification
(later in this judgment called the first notification) was issued by the
·+ Government of West Bengal under section 4 of the Act stating that a
piece of land delineated in the. plan available in the Office of the Special
Land Acquisition Officer, Burdwan, as well as in that of the Director
<if MI s Sen Raleigh Industries India Ltd. (hereinafter referred to as B
the Company) at Kanyapur in District Burdwan was likely to be
needed for a public purpose (not being a purpose of the Union) namely,
for expansion of the factory of the Company and "for construction of .
quarters for its workers and staff and for providing other amenities
directly connected therewith, such as school, play-grounds, hospitals,
markets, police out-posts, etc., in the villages of Sarakdih, Nadiha, c
•Garui, Hatgaruy and Panchgachhia, jurisdiction lists Nos. 1, 2, 3, 42/3
and 34 respectively, Police Stations Asansol and Barabani, Pargana
Shergarh, District Burdwan ... : ..... " at the expense of the Company.
An area totalling 17.20 acres and belonging to the respondents was
included in the land covered by the notification.
D
The respodents preferred objections to the proposed acqu1S1t10n
under section SA of the Act to the effect that the land was not acquired
for any public purpose, that the real purpose was to benefit the Com-
pany and that the first notification was a fraudulent exercise of the
power conferred by the Act on the State Government.
E
A fresh notification (second notification for short) under section 4
-of the Act was issued on November 3, 1961 in respect of land measur-
ing 146.90 acres which was the same land as was covered by the first
notification, except for a small area. The second notification stated
that the land was likely "to be needed for a public purpose, not being
F
a purpose of the Union, namely, for industrial development at Asansol
in the villages of Sarakdih, Nadiha, Garui, Hatgaruy and Panchga-
<:hhia, jurisdiction list Nos. 1, 2, 3, 78 and 34 respectively, Police Sta-
tions Asansol and Bara bani, Pargana Shergarh, District Brnrdwan ..... .
at public expense."
G
The area of 17.20 acres mentioned above was included in the land
covered by the second notification also and the respondents filed ob-
jections under. section SA of the Act over again contending that
although the ostensible purpose of the acquisition was a public pur-
pose, the land was really sought to be acquired for a private purpose,
i.e., for the benefit of the Company. H
The first notification was cancelled by an order ·dated the 26th
April 1962 and, on the 20th June, 1963, the impugned nQtification
576 SUPREME COURT REPORTS [19811 1 S.C.R.
A containing the declaration under section 6 of the Act (the third notifi-
cation for brevity} was made. About three months later the respon-
dents were served with notices under section 9 of the Act informing ·
them that the State Government was taking steps to secure possession
of the acquirr,d lands and that they couldl submit their claims for
compensation. Further representations were made by the respondents
B in an effort to have the acquisition proceedings dropped but without
success and it was then that each one of them filed a petition under
Article 226 of the Constitution asking for the issuance of a writ which
was ultimately granted to them by th<! impugned judgment.
3. The grounds of challenge taken in a\l the petitions were iden-
c tical and were to the following effect:
(a) Full particulars of the public purpose for whkh the land was
sought to be acquired were u.ot stated in the second and third
notifications.
(b) Both those notifications were issued in colourable or mala-
fide exercise of the power conferred by the Act.
D
Before the learned Single Judge ground (b) was not pressed at
the hearing. In relation to ground (a} he held that the industrial deve·
lopment of a particular area was in itself a public purpose and no
further details of such purpose need be given in the notifications issued
under the Act. Reliance in this connection was placed on Barkya
E Thakur v. State of Bombay( 1). It was further observed by the learned
Single Judge that the proceedings ulllder section 5A of the Act in
relation to the impugned notifications had not been completed, that
it would be open to the respondents to obtain further information from
the State Government, that the respondents might possibly have ano-
ther cause of action in case the supply of information was refused and
F that the petitions under Article 226 o!: the Constitution were, therefore,
pre-mature. All the five petitions were in the result dismissed by the
learned Single Judge.
4. In. the Letters Patent Appeal:; decided by the impugned order
the argument advanced on behalf o:E the respondents before us. that
G the purpose of the acquisition as stated in the impugned notifications
suffered from vagueness and that they had in consequence been de-
prived of the right to make effective objections unde:r section 5A of
the Act was held to be untenable. The Division Bench noticed that
the learned Single Judge had erred in assuming that the objections
filed by the respondents under the sedion last mentioned had not been
H decided by the time of his judgment. The ground that the real pur-
pose of the proposed acquisition wru; not a public purpose at all but
(I) A.LR. 19GO S.C. 1203.
LAND ACQUISITION COLLECTOR v. DURGA PRASAD (Koshal, J.) 577
was to benefit the Company and that the impugned notifications were, A
therefore, issued in coiourable exercise of the powers conferred on
the State Government by the Act was strongly put forward before the
Division Bench and was considered by it at length. Relying upan
Somawanti v. State of Punjab(I), it held that although a declarai!'ion
made under section 6 of the Act was final and conclusive not only
in regard to the need for acquisition but also in regard to the purpose B
being a public purpose if it was so stated therein, it was. open to a
person whose land was acquired to challenge it on the ground of colour-
able ·exercise of power. The Division Bench referred to the pleadings
of the parties and took note of the fact that although the respondents
had clearly taken up the position that the real purpose of the acquisi-
tion was not a public purpose but was to benefit the Company, the c
Land Acquisition Collector had not in his affidavit taken any specific
stand on the point but had only made an evasive denial of the plea
put forward by the respondents and that while it was open to the
State Government to produce documentary evidence showing that the
purpose for which the land was acquired was a public purpose and
D
not merely to benefit the Company it had failed to adopt that course.
Refusting to hold, however, that there had be·en a colourable exercise
of power on the part of the ·State Government the Division Bench
held that the presumption that if such evidence had been produced' it
would be unfavourable to the State Government was available to the
respondents in the present case. In this connection it further observed: E
"After all, when the proposed acquisition is impugned as
acquisition in colourable exercise of power and there is a speci~c
allegation of the real purpose of the acquisition, it is for the res-
pondents to disclose, except for good reasons, the relevant mate·
. rial or information, to enable the Court to pronounce on the
matter and not to maintain a meaningful silence or indulge in F
equivocations and double standards, rely on the doctrine of onus
of proof and deflect the course of justice. For the Court to per-
mit this to be done with success, will be to stultify itself, abdicate
its functions and abjure its duties."
and on this finding accepted all the five Letters Patent Appeals. G
5. After hearing learned counsel for the parties we find that the
learned Judges of the Division Bench seriously erred in accepting the
Letters Patent Appeals in view of the finding arrived at by them that
malafides or a colourable exercise of power on the part of the State
Government could not be held established. Not only had their atten- H
tion been drawn to the dictum in Somawanti's case (supra) but they
(1) [1963) 2 S.C.R. 774.
578 SUPREME COURT REPORTS [l98l] 1 S.C.R.
A had in the impugned judgment extracted certain observations made
therein by Mudholkar, J., to the effect that a declaration made under
s1~ction 6 of the Act and published in the Official Gazett•e shall be con-
clusive evidence that the Jana is needed for a public purpose and that
to this rule there was only one exception, namely, that ilhe declaration
could be challenged on the ground of malafide or colourable exercise
B of power. It was thus clear that the third notification had to be taken
at its face value in so far as the purpose was concerned unless the ex-
ception was established. It further go1:s without saying that the qnus -
of proving that the declaration contained in the third notification fell
within the exception would be on the party claiming the benefit of ,-~-
the exception, namely, the respondents. While criticising the attitude
c of the State Government for not having produced the documentary.
evidence from which the purpose of the acquisition could be ascer- ~
tained. S. K. Mukherjee, J., who delivered the judgment on behalf of
the Division Bench, repeatedly stated that he did not intend to say
that the land of the respondents was not sought to be acquired for a
purpose which was a public purpose a:; declared in the third notifica-
D tion or that that notification was necessarily vitiated by any malafides
or colourable exercise of power. He further observed that according
to. the rules of evidence it was for the respondents to satisfy the Court
that there had been a colourable exercise of power because the onus
of proof in that behal.f was on them. In this situation we do not see
how the respondents could be given any relief whatsoever. The acqui-
E
sition could be struck down only if the declaration contained in the
third notification was proved to be vitiated by malafides or colourable
exercise of the power. On the other hand. if it was not established
that such exercise of power was so vitiated, the declaration had to be ./
taken at its word. On the findings of fact arrived at by the Division .
Bench, therefore, the Letters Patent Appeals merited nothing but
F
dismissal.
6. Learned counsel for the respondents urged that they were really
entitled to a finding of malafides on the part of the Sta1te Government
but we find ourselves wholly unable to agree with him. The burden.
as he concedes, was squarely on the respondents to prove colourable
G exercise of power. In the face of the. conclusive presumption which
the Court has to raise under sub-section (3) of section 6 of the Act
about the nature of the purpose stated in the declaration being true.
the onus on the respondents to displace the presumption was very
heavy indeed and we do not think that the same could be said tO'
have been discharged by a mere allegation in that behalf which has
H been denied bv the Sta:~e. If we accept the argument that ir, is for
¢he State to s.atisfy the Court about the nature of the purpose for
which the land is sought ~o be acquired:, the whole object of the provi-
LAND ACQUISITION COLLECTOR v. DURGA PRASAD (Koshal, J.) 579
sion under which the conclusive presumption has Ito be raised in re- A
gard to the nature of the purpose would be· defeated. We cannot,
therefore, hold merely on the strength of ~he absence of production
of documentary evidence by the State that the onus (which rested
heavily on the respondents) to prove malafides or colourable exer-
cise of power on the part of the State Government, has been discharg-
ed. Even so the respondents have produced no mate;rial to show B
thal1: the assertion about the public purpose_ as stated in the third
notifica~ion was incorrect for the reason that the acquired land was
not suitable for any industry or that no industrial activity except that
________ by the Company had been undertaken in the neighbourhood of the
acquired area. On the other hand, there is a clear averment to the
contrary by the State in paragraph 1 of each of the applications dated c
August 26, 1967, for the grant of certificates under Article 133 of the
Constitution. That averment reads:
"That the Asansol Sub-Division within the District of Burd-
wan is a highly developed industrial area ·having a number of
big industrial concerns, viz. The Indian Iron & Steer Co., Indian D
Alumin'ium Corporation and several collieries, etc., etc. It is
within the industrial belt of Durgapur-Asansol area where besides
the above mentioned industries, there are Hindustan Steel, Durga-
pur Projects Graphite Company and a number of other very big
industries."
E
This averment which was supported by affidavit was never con-
troverted by the respondents and cuts at the root of their plea of mala-
fides or colourable exercise of power.
7. Mr. Balakrishnan, learned counsel for the respondents raised
a preliminary point to the effect that the second notification was void
F
inasmuch as it had been issued while the first notification was still in
force. We do not see any reason for entertaining the point when it
was not raised on behalf of the respondents at any stage before the
High Court.
I
8. In the result all the five appeals succeed and are accepted.
The impugned judgment is set aside and the petitions made by the G
respondents to the High Court are dismissed. '.fhere will, however,
be no order as to costs in any of the appeals.
P.B.R. Appeals allowed.
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Land acquisition"Sign in to search