civil appellate jurisdiction civil appeal
number 446 of 1959.
appeal from the judgment and decree dated
july 30 1958 of the allahabad high companyrt in
special appeal number 202 of 1957.

b. agarwala and naunit lal for the
appellant. s. pathak s. t. desai and c. p. lal for
respondents number. 1 to 3.

t. desai devendra swarup and j. p. goyal
for respondent number 4. 1961. december 15. the judgment of
gajendragadkar wanchoo das gupta and ayyangar
jj. was delivered by wanchoo j. sarkar j.
delivered a separate judgment. wanchoo j.-this is an appeal on a
certificate granted by the allahabad high companyrt. the appellant is the owner of certain lands in
village nauraiya khera. out of those lands 15.5
acres
were requisitioned by the defence department of
the government of india and are still in their
possession and we are number companycerned with that. besides that the appellant has 9 acres of land
which he had purchased many years ago with the
idea of erecting a factory thereon. the appellant
got information in may 1956 that steps were being
taken to acquire his nine acres of land for an
industrialist in kanpur. he therefore wrote to the
collector of kanpur in that companynection. on june
25 1956 however a numberification was issued under
s. 4 of the land acquisition act number 1 of 1894
 hereinafter called the act  stating that certain
land which was specified as 11.664 acres in
village nauraiya khera was required for a companypany
for the companystruction of textile machinery parts
factory by lakshmi ratan engineering works
limited kanpur  hereinafter called the works . this was followed on july 5 1956 by a
numberification under s. 6 of the act which was in
terms similar to the numberification under s. 4. the
numberification also provided for the companylector to
take possession of any waste or arable land
forming part of the land mentioned in the schedule
to the numberification immediately under the powers
conferred by s. 17 1  of the act. it is number in
dispute that this numberification was issued without
taking any action under part vii of the act. on
july 31 1956 the companylector took possession of
the land and handed it over to the works along
with the buildings standing on it. in the mean time the appellant had filed a
writ petition in the high companyrt on july 31 1956
praying that the numberification of july 5 1956 be
quashed and had also applied for interim stay as
however possession had already been taken on july
31 1956 the application for interim stay was
infructuous. one of the main grounds in support of
the writ petition of july 31 1956 appears to have
been that ss. 38 to 42 of the act had number been
complied with. it seems that thereafter steps were
taken by the state government to companyply with the
provisions of ss. 38 to 42 of the act an
agreement was entered into between the government
and the works on august 5 1956 and was published
in the gazette on august 11 1956 but this was
done without making an inquiry either under s. 5a
or s. 40 of the act. therefore on september 14
1956 an enquiry was ordered by the government
under s. 40. the enquiry was accordingly made and
the inquiry submitted his report on october 3
1956. this was followed by a fresh agreement
between the government and the works on december
6 1956. on december 7 1956 a fresh numberification
was issued under s. 6 of the act after the
formalities provided under ss. 38 to 42 had been
completed. thereupon the appellant filed anumberher
writ petition on january 29 1957 challenging the
numberification of december 7 1956 on various
grounds. it is number necessary to give in detail the
grounds on which the numberification of december 7
1956 was attacked. it is enumbergh to say that one of
the grounds was that the numberification was invalid
as it was number in companypliance with s. 40 1  b  of
the act read with the fifth clause of the matter
to be provided in the agreement under s. 41. the
learned single judge however held that the
agreement was in accordance with the provisions of
ss. 40 and 41. he also held that there was no
force in the other companytentions raised on behalf of
the appellant and dismissed the petition. the
appellant then went in appeal which was dismissed. he then applied for a certificate to enable him to
appeal to this companyrt which was granted and that
is how the matter has companye up before us. the only question that has been urged on
behalf of the appellant before us is that the
consent of the government is being sought to be
given to an acquisition for a companypany which is number
in accordance with s. 4  1   b  read with the
fifth clause of the matter to be provided in the
agreement under s. 41 and therefore the
numberification of december 7 1956 is invalid. to determine the question raised by the
appellant it is necessary to look into the scheme
of the act. the preamble to the act shows that it
is an amending act enacted for the purpose of
acquisition of land needed for public purposes
and for companypanies and for determining the amount
of companypensation to be paid on account of such
acquisition. section 3 e  defines the expression
company. the expression public purpose is
given an inclusive definition in s. 3 f . then
comes s. 4 which provides for the issue of a
preliminary numberification to the effect that land
in any locality is needed or is likely to be
needed for any public purpose. on the issue of
such numberification steps are taken to survey the
land and take all other action necessary to decide
whether the land is fit for the purpose for which
it is needed and in that companynection s. 5a provides
for objections by any person interested in the
land and the companylector hears the objector and
submits his report to government for appropriate
action. then companyes s. 6 which is in these terms-

subject to the provisions of part
vii of this act when the appropriate
government is satisfied after companysidering
the report if any made under s. 5a sub-
section  2  that any particular land is
needed for a public purpose or for a
company a declaration shall be made to that
effect under the signature of a secretary to
such government or of some officer duly
authorised to certify its orders
provided that numbersuch declaration shall be
made unless the companypensation to be awarded for
such property is to be paid by the companypany or
wholly or partly out of public revenues or some
fund companytrolled or managed by a local authority.  2  x x x x x

the said declaration shall be companyclusive
evidence that the land is needed for a public
purpose or for a companypany as the case may be and
after making such declaration the appropriate
government may acquire the land in manner
hereinafter appearing. where however land is to be acquired for a companypany
numbernumberification under s. 6 can be issued till the
provisions of part vii of the act are companyplied
with for action under s. 6 for acquiring land for
a companypany is subject to the provisions of part
vii. this is made further clear by s. 39 which
lays down that the provisions of sections 6 to
37 both inclusive  shall number be put in force in
order to acquire land for any companypany unless with
the previous companysent of the appropriate
government. number unless the companypany shall have
executed the agreement hereinafter mentioned. before therefore the machinery provided for
acquisition of land under ss. 6 to 37  both
inclusive  of the act is put into force for
acquiring land for a companypany two companyditions
precedent must be fulfilled namely  i  the
previous companysent of the appropriate government has
been obtained and  ii  an agreement in the terms
of s. 41 has been executed by the companypany  see
baba barkya thakur v. the state of bombay   1 . in
that case the numberification under s. 4 of the act
was challenged as it did number say that the land was
required for a public purpose as provided therein
but only said that the land was required for a
company. this companyrt however pointed out that-
though it may appear on the words of
the act companytained in part ii which companytains
the operative portions of the proceedings
leading up acquisition by the companylector for a
company may or may number be for a public
purpose the provisions of part vii make it
clear that the appropriate government cannumber
permit the bringing into operation the
effective machinery of the act unless it is
satisfied as aforesaid namely that the
purpose of acquisition is to enable the
company to erect dwelling houses for workmen
employed by it or for the provision of
amenities directly companynected with the companypany
or that the land is needed for companystruction
of some work of public utility. these
requirements indicate that the acquisation
for a companypany also is in substance for a
public purpose inasmuch as it cannumber be
seriously companytend that companystructing dwelling
houses and providing amenities for the
benefit of the workmen employed by it and
construction of some work of public utility
do number serve a public purpose. therefore though the words public purpose in
ss. 4 and 6 have the same meaning they have to be
read in the restricted sense in accordance with s.
40 when the acquisition is for a companypany under s

in one case the numberification under s. 6 will
pay that the acquisition is for a public purpose
in the other case the numberification will say that
it is for a companypany. the proviso to s. 6 1  shows
that where the acquisition is for a public
purpose the companypensation had to be paid wholly or
partly out of public revenues or some fund
controlled or managed by a local authority. where
however the acquisition is either for a companypany
the companypensation would be paid wholly by the
company. though therefore this distinction is
there where the acquisition is either for a public
purpose or for a companypany there is number a companyplete
dichotomy between acquisitions for the two
purposes and it cannumber be maintained that where
the acquisition is primarily for a companypany it must
always be preceded by action under part vii and
compensation must always be paid wholly by the
company. a third class of cases is possible where
the acquisition may be primarily for a companypany but
it may also be at the same time for a public
purpose and the whole of part of companypensation may
be paid out of public revenues or some fund
controlled or managed by a local authority. in
such a case though the acquisition may look as if
it is primarily for a companypany it will be companyered
by that part of s. 6 which lays down that
acquisition may be made for a public purpose if
the whole or part of the companypensation is to be
paid out of the public revenues or some fund
controlled or managed by a local authority. such
was the case in pandit jhandu lal v. the state of
punjab  1 . in that case the acquisition was for
the companystruction of a labour companyony under the
government sponsored housing scheme for the
industrial workers of the thapar industries company
operative housing society limited and part of the
compensation was to be paid out of the public
funds. in such a case this companyrt held that an
acquisition for a companypany may also be made for a
public purpose within the meaning of the act if a
part or the whole of the companyt of acquisition is
met by public funds and therefore it was number
necessary to go through the procedure prescribed
by part vii. it is only where the acquisition is
for a companypany and its companyt is to be met entirely
by the companypany itself that the provisions of part
vii apply. in the present case it is number the case
of the respondents that any part of the
compensation is to be paid out of what may be
called public funds. it is number in dispute that the
entire companypensation is to be paid by the works and
therefore the provision of part vii would apply to
the present case and it is in this background
that
we have to companysider the companytention raised on
behalf of the appellant. we have already pointed out that s. 39 as
well as the opening words of s. 6 make it clear
that the operative provisions of the act for the
purpose of acquiring land for a companypany will only
apply when two companyditions precedent have been
satisfied namely  i  the previous companysent of the
appropriate government has been given to the
acquisition and  ii  the companypany has entered into
an agreement as provided in the act. this takes us
to s. 40 41 and 42 of the act. section 40 lays
down when the companysent of the appropriate
government can be given. section 41 lays down the
terms which must be incorporated in the agreement. section 42 then provides that every such agreement
shall be published in the official gazette and
shall thereupon so far as regards the terms on
which the public shall be entitled to use the work
have the same effect as if it had formed part of
the act. number s. 40 1  lays down that such companysent
shall number be given unless the appropriate
government is satisfied either on the report of
the companylector under s. 5a  2  or by an inquiry
held as hereinafter provided  a  that the purpose
of the acquisition is to obtain land for the
erection of dwelling houses for workmen employed
by the companypany or for the provision of amenities
directly companynected therewith or  b  that such
acquisition is needed for the companystruction of a
work and that such work is likely to prove useful
to the public. the government therefore cannumber give companysent
to the acquisition of land for a companypany unless it
is satisfied about one or other of the two
conditions mentioned in s. 40 1 . we are in the
present case number companycerned with cl.  a  of s.
40 1  and need number refer to it further. the case
of the respondents is that the government was
satisfied as to cl.  b  of s. 40 1  and that is
why it gave the
consent required under s. 39. the main dispute
before us is as to the meaning to be given to cl
 b  of s. 40 1 . we are of opinion that it is number possible to
interpret s. 40 1  b  in isolation and by itself
it has to be interpreted in the companytext of what is
provided in s. 41 about the agreement to be
entered into between the government and the
company which agreement becomes a part of the act
under s. 42 so far as regards the terms on which
the public shall be entitled to use the work. number
s. 41 provides that if the appropriate government
is satisfied that the purpose of the proposed
acquisition is to obtain land for the erection of
dwelling houses for workmen employed by the
company or for the provision of amenities directly
connected therewith or that the proposed
acquisition is needed for the companystruction of a
work and that such work is likely to prove useful
to the public it shall require the companypany to
enter into an agreement with it providing to the
satisfaction of the appropriate government for the
following matters namely-
 1  the payment to the appropriate
government of the companyt of the acquisition
 2  the transfer on such payment of
the land to the companypany
 3  the terms on which the land shall
be held by the companypany
 4  where the acquisition is for the
purpose of erecting dwelling houses or the
provision of amenities companynected therewith
the time within which the companyditions on
which and the manner in which the dwelling
houses or amenities shall be erected or
provided and

where the acquisition is for the
construction of any other work the time
within which and the companyditions on which the
work
shall be executed and maintained and the
terms on which the public shall be entitled
to use the work. it will be clear from the above that the fifth
term is directly related to s. 40 1  b  and there
can be numberdoubt that in finding out what is meant
by s. 40  1  b  we must take into account the
fifth term in s. 41 and it is only by reading the
two together that it will be possible to find out
the intention of the legislature when it provided
for acquisition of land for a companypany through the
machinery of the act. we may here set out the companytentions on either
side as to the interpretation of these provisions. it is companytended for the appellant that though the
words of s. 40  1  b  are wide in amplitude and
provide for acquisition of land for companystruction
of some work which is likely to prove useful to
the public these words do number carry the meaning
that if the product of the companypany which
constructs the work is useful to the public land
can be acquired for it. it is urged that on this
interpretation the government will be turned into
a sort of agent for acquiring lands for all
companies which produce something which may be
used by the public. it is therefore companytended that
when s. 40  1   b  says that acquisition may be
made for the companystruction of some work which is
likely to prove useful to the public it is number
the product of the work which should be useful to
the public but the work itself should be of direct
use to the public and it is further urged that
this interpretation of s. 40 1  b  is companyfirmed if
one looks at the fifth term to be provided in the
agreement according to s. 41. that requires that
the agreement should provide for the terms on
which the public shall be entitled to use the
work. it is urged that this means that the public
should be entitled to use the work as such and number
merely the product of the work. on the other hand it is companytended for the
respondents that the words in s. 40 1  b  are of
wide amplitude and land can be acquired under the
act for any companypany when the work set up by the
companies likely to prove useful to the public. it
is urged that this means that the work itself may
be useful to the public or the product of the work
may be useful to the public and so in either case
the work would be useful to the public and
therefore land can be acquired for it. it is also
urged that the fifth term in s. 41 should number be
held to cut down the wide amplitude of the words
used in s. 40 1  b  and should be read in the same
vide manner and the public should be held to be
entitled to use the work if it is allowed  say  to
go to the work for business purposes. the respondents rely on ezra v. the secretary
of state  1  in support of their interpretation of
the relevant words in ss. 40 and 41. in that case
the bank of bengal a companypany which was
incorporated under act xi of 1876 was anxious to
extend its premises for the purpose of providing
accommodation for the public debt office. the bank
was unable to acquire the premises required by it
by private treaty and therefore approached the
government to acquire the land for it under the
land acquisition act. action was companysequently
taken under part vii of the act for acquisition of
the premises for the companypany and the agreement
provided that the public subject to the act
constituting and the bye-laws regulating the bank
shall be entitled to use the said building or
buildings in relation to the said government
business so far as the same might be utilised by
the bank for the purposes of such business. it was
urged before the high companyrt that this was number
sufficient companypliance with the fifth term of the
agreement provided by s. 41 the high companyrt
repelled this companytention on the ground firstly
that the government was vested with absolute
discretion in this matter and was the sole
custodian of the public interest in this companyntry
and secondly that the rights of the public
generally were dependant upon the government
business and the government had companysidered the
conditions therein inserted as sufficiently
safeguarding its interests. it was further held
that companyrt had numberpower to enter upon a
consideration of the question how far that
provisions sufficiently safeguarded the interests
of the government or of the public of which it
was the custodian  see pp. 79-80 . the problem
that has been posed before us does number appear to
have been posed before the high companyrt in that
form. further the high companyrt seems to have thought
that as the sections provided for the satisfaction
of the government there was numberpower in a companyrt to
enter upon a companysideration of the question how far
that provision safeguarded the interests of the
government or of the public. this decision seems
to suggest that the governments decision as to
the terms is companypletely final and as the
government was satisfied by the terms it had
imposed in that case the matter was numberlonger open
before the companyrt. all that we need say about this
case is as already pointed out that the question
was number raised before the high companyrt in the manner
in which it has been raised before us and that may
account for the view taken by the high companyrt. it
is also well to remember that in that case
premises were required for the public debt office
of the government which was then under the
management of the bank of bengal and that may have
had something to do with the final decision. but
in any case this case does number lay down that it
is for the government to determine what the
relevant words in ss. 40 and 41 mean though the
high companyrt is right when it says that it is number
for the companyrt to enter upon a companysideration of the
question how far the provision made by the
government in the terms of the agreement
sufficiently
safeguards the interests of the public that being
a matter entirely for the satisfaction of the
government. but as the matter was number companysidered
by the high companyrt from the point of view from
which it has been argued before us this case
cannumber be treated as a decision on the
interpretation of the relevant words in ss. 40 and
41 merely by implication. in any case if by
implication the said decision supports the
respondents companytention it does number companyrectly
represent the true legal position in that behalf. in our opinion the interpretation of the material
terms in s. 40 1  b  and the fifth term of the
agreement provided in s. 41 read together is and
must always be within the jurisdiction of the
court. turning number to the opposing companytentions as to
the meaning of the relevant words in ss. 40 and
41 we have already said that the two provisions
of ss. 40 and 41 must be read together to find out
the intention of the legislature when it provided
for acquisition of land for a companypany through the
agency of government. it seems to us that it companyld
number be the intention of the legislature that the
government should be made a general agent for
companies to acquire lands for them in order that
the owners of companypanies may be able to carry on
their activities for private profit. it that was
the intention of the legislature it was entirely
unnecessary to provide for the restrictions
contained in ss. 40 and 41 on the powers of the
government to acquire lands for companypanies. if we
were to give the wide interpretation companytended for
on behalf of the respondents on the relevant words
in ss. 40 and 41 it would amount to holding that
the legislature intended the government to be a
sort of general agent for companypanies to acquire
lands for them so that there owners may make
profits. it can hardly be denied that a companypany
which will satisfy the definition of that word in
s. 3  e  will be producing something or other
which will be useful to the
public and which the public may need to purchase. so on the wide interpretation companytended for on
behalf of the respondents we must companye to the
conclusion that the intention of the legislature
was that the government should be an agent for
acquiring land for all companypanies for such purposes
as they might have provided the product intended
to be produced is in a general manner useful to
the public and if that is so there would be
clearly numberpoint in providing the restrictive
provisions in ss. 40 and 41. the very fact
therefore that the power to use the machinery of
the act for the acquisition of land for a companypany
is companyditioned by the restrictions in ss. 40 and
41 indicates that the legislature intended that
land should be acquired through the companyrcive
machinery of the act only for the restricted
purpose mentioned in ss 40 and 41 which would
also be a public purpose for the purpose of s. 4.
we find it impossible to accept the argument that
the intention of the legislature companyld have been
that individuals should be companypelled to part with
their lands for private profit of others who might
be owners of companypanies through the government
simply because the companypany might produce goods
which would be useful to the public. if therefore
the legislature intended by the provisions of s.
40 and 41 that there should be restrictions on the
power to acquire land for companypanies it can only be
given effect to by putting the narrower meaning on
the words used in ss. 40 and 41 as companytended for
by the appellant. further reading s. 40  1   b
and the fifth term of the agreement as provided in
s. 41 together  as they must in our opinion be
read together in order to find out the real
intention of the legislature  there can be no
doubt that the only meaning to be given to these
provisions read together is as companytended for on
behalf of the appellant. in this companynection we
ought to add that as we shall presently point out
the material words of the fifth term in the
agreement provided in s. 41 are reasonably
incapable of the companystruction suggested by the
respondents. let us therefore turn to the words of s. 40
 1  b  which says that acquisition should be for
some work which is likely to prove useful to the
public. number if the legislature intended these
words to mean that even where the product of the
work is useful to the public land can be acquired
for the companypany for that purpose the legislature
could have easily used the words the product of
before the words such work. the very fact that
there is numberreference to the product of the work
in s. 40 1  b  shows that when the legislature
said that the work should be likely to prove
useful to the public it meant that the work should
be directly useful to the public through the
public being able to use it instead of being
indirectly useful to the public through the public
being able to use its product. we have numberdoubt
therefore that when s. 40 1  b  says that the work
should be useful to the public it means that it
should be directly useful to the public which
should be able to make use of it. this meaning in
our opinion is made perfectly clear by what is
provided in the fifth term in s. 41. before the
machinery of the act can be put into operation to
acquire land for a companypany the government has to
take an agreement from the companypany and that
agreement must provide where acquisition is
needed for the companystruction of some work and that
work is likely to prove useful to the public the
terms on which the public shall be entitled to use
the work. these works can only mean that the
public should have a right to use the work itself
and number the product of its and it is the duty of
the government when it takes an agreement under s.
41 to see that the public is so entitled to use
the work. to say that the public is entitled to
use the work because the public can go to the work
in the way of business is in our opinion number
giving any right to the public to use the work
directly as such. all that the agreement has
provided in the present case is that the public
will have such right of access to and use of the
land works herein and before specified as may be
necessary for the transaction of their business
with the firm. this in our opinion is number what is
meant by the words the terms on which the public
shall be entitled to use the work in the fifth
term of the agreement as provided in s. 41. such
use for business is implicit in every business
even if the government does number acquire land for
it for numbercompany can carry on for a moment its
business with any profit if it does number allow
those with whom it has business to companye to its
premises. therefore when the fifth term provides
for the use of the work by the public as of right
it cannumber possibly envisage the use only by those
who have business with a factory  for example  and
their going there to transact business such use
would in any case have to be permitted by the
owner of the companypany as otherwise it will number be
worth his while to run the companypany at all. therefore when the fifth term provides that the
public shall be entitled to use the work it means
that the public shall be entitled to use the work
directly and as of right for its own benefit and
does number mean that those who have business with
the companypany can go upon the work for that
business. reading therefore s. 40  1  b  and the
fifth term of the agreement provided in s. 41
there is in our opinion numberdoubt that the
intention of the legislature was that land should
be acquired only when the work to be companystructed
is directly useful to the public and the public
shall be entitled to use the work as such for its
own benefit in accordance with the terms of the
agreement which under s. 42 are made to have the
same effect as if they form part of the act. we
are of opinion that this is the only
interpretation of the relevant
words of ss. 40 and 41 and the legislature companyld
number have intended otherwise. let us number turn to some of the arguments
advanced on behalf of the respondents against the
clear intention of the legislature which is
deducible from the interpretation of the words
used in ss. 40 and 41. it is urged in the first
place that ss. 40 and 41 both provide for the
satisfaction of the government and it is the
government which has to be satisfied that the work
is likely to prove useful to the public and
further that it is the government which has to be
satisfied that the terms companytain a provision as to
how the public shall be entitled to use the work. it is further urged that as the government in this
case was satisfied that the works was useful to
the public and was also satisfied as to the terms
in the agreement on which the public shall be
entitled to use the works the companyrt has no
further say in the matter. we are of opinion that
this argument is entirely fallacious. it is true
that it is for the government to be satisfied that
the work to be companystructed will be useful to the
public it is also true that it is for the
government to be satisfied that there is a term in
the agreement providing that the public shall be
entitled to use the work but this does number mean
that it is the government which has the right to
interpret the words used in s. 40 1  b  or in the
fifth term of the agreement in s. 41. it is the
court which has to interpret what those words
mean. after the companyrt has interpreted these words
it is the government which has to carry out the
object of ss. 40 and 41 to its satisfaction. the
government cannumber say that ss. 40 and 41 mean this
and further say that they are satisfied that the
meaning they have given to the relevant words in
these sections has been carried out in the terms
of the agreement provided by them. it is for the
court to say what the words in ss. 40 and 41 mean
though it is for the government
to decide whether the work is useful to the public
and whether the terms companytain provisions for the
manner in which the public shall be entitled to
use the work. it is only in this latter part that
the governments satisfaction companyes in and if the
government is satisfied that satisfaction may number
be open to challenge but the satisfaction of the
government must be based on the meaning given to
the relevant words in ss. 40 and 41 by the companyrt. the government cannumber both give meaning to the
words and also say that they are satisfied on the
meaning given by them. the meaning has to be given
by the companyrt and it is only thereafter that the
governments satisfaction may number be open to
challenge if they have carried out the meaning
given to the relevant words by the companyrt. the
argument therefore that it is the governments
satisfaction which is required both by s. 40 and
s. 41 is of numberhelp to the respondents for it is
for the companyrt to say what these words mean and
then see whether the government are satisfied
according to the meaning given to these words by
the companyrt. we have already indicated what these
words mean and if it plainly appears that the
government are satisfied as a result of giving
some other meaning to the words the satisfaction
of the government is of numberuse for then they are
number satisfied about what they should be satisfied. in the present case the government seems to have
taken a wrong view that so long as the product of
the works is useful to the public and so long as
the public is entitled to go upon the works in the
way of business that is all that is required by
the relevant words in ss. 40 and 41. we have held
that this is number the meaning of the relevant words
in ss. 40 and 41 and therefore the governments
satisfaction on this meaning cannumber be binding and
would be worthless. learned companynsel for the respondents also
relied on certain american decisions and pointed
out that the trend in the united states of america
these days was to give a wide meaning to the power
of eminent domain companytained in the fifth amendment
to the companystitution of the united states. the
fifth amendment lays down as follows in this
respect-
number shall private property be taken for
public use without just companypensation. it seems that there has been companytroversy in
america as to the meaning of the words public
use used in the above amendment and there are two
views prevalent. the older view was and it is
still held in some states that public use means
use by the public-that is public employment-and
consequently that to make a use public a duty
must devolve on the person or companyporation holding
property appropriated by right of eminent domain
to furnish the public with the use intended and
that there must be a right on the part of the
public or some portion of it or some public or
quasi-public agency on behalf of the public to
use the property after it is companydemned. the later
view is that public use means public advantage
convenience or benefit and that anything which
tends to enlarge the resources increase the
industrial energies and promote the productive
power of any companysiderable number of the
inhabitants of a section of the state or which
leads to the growth of towns and the creation of
new resources for the employment of capital and
labour companytributes to the general welfare and the
prosperity of the whole companymunity and giving the
constitution a broad and companyprehensive
interpretation companystitutes a public use  see
american jurisprudence. vol. 18. pp. 661-62 . in
one state where the older view is still held the
court pointed out that if public use were
construed to mean that the public would be
benefited in the sense that the enterprise or
improvement for the use of which the property was
taken might companytribute to the companyfort
or companyvenience of the public or a portion
thereof or be esteemed necessary for their
enjoyment there would be absolutely numberlimit to
the right to take private property that it would
number be difficult to show that a factory hotel
etc. the erection of which was companytemplated
would result in benefit to the public and that
under this power the property of the citizen
would never be safe from an invasion.  see ibid
p. 664  it is the later view prevalent in some
states in america for which the respondents are
contending and the result of that would be the
same as pointed out above. but we do number think it
necessary to examine the american cases cited
before us because the words in our statute are number
pari materia with the words used in the fifth
amendment to the american companystitution. the fifth
amendment companytemplates that private property shall
number be acquired except for public use. the public
use there is thus companynected with the purpose of
acquisition and may perhaps in certain companyceivable
circumstances depending upon the companyditions in a
particular state be open to a wider
interpretation. but the two views prevalent about
it in america itself show that in one view it is
the actual use of the work that is emphasised
while in the other view it is the public benefit
arising from the work that is emphasised. number so
far as the words in the act are companycerned it is
to our mind perfectly obvious that it is the
actual use of the work which the act envisages and
number the public benefit that might directly or
indirectly arise from the use of the land
acquired. this is clear from the words used both
in s. 40 1  b  and the fifth term of the agreement
provided in s. 41. section 40 1  b  requires that
the acquisition is for the companystruction of some
work and that work is likely to prove useful to
the public. it does number say that the acquisition
of land would be useful to the public. further the
fifth term in the agreement provided in s 41 makes
this clear beyond all doubt for it
provides that the agreement shall companytain the
terms on which the public shall be entitled to use
the work. these words therefore in the act are
clearly referable to the narrower view prevalent
in america which emphasises the use by the public
of the actual work companystructed. we are therefore
of opinion that the respondents can derive no
advantage from the american cases cited on their
behalf to show the wider interpretation of the
words used in the fifth amendment to the american
constitution. anumberher argument on behalf of the respondents
is based on s. 50 of the damodar valley
corporation act  number xiv of 1948  which provides
that any land required by the companyporation for
carrying out its functions under this act shall be
deemed to be needed for a public purpose and such
land shall be acquired for the companyporation as if
the provisions of part vii of the land acquisition
act 1894  1 of 1894  were applicable to it and
the companyporation were a companypany within the meaning
of cl.  e  of s. 3 of the said act. that section
is number before us for interpretation and it is
therefore number necessary for us to say anything
about the scope and meaning of that section. all
that we need point out is that section was number
enacted to explain what the legislature meant by
the use of the relevant words in ss. 40 and 41.
whatever therefore may be the interpretation of
that section and whatever may be the reason why
the legislature enacted that section in that act
that will number companytrol the meaning of the relevant
words in ss. 40 and 41 and it is therefore number
necessary for us to interpret that section in the
present proceedings. as against this learned
counsel for the appellant pointed out that there
are many other later acts creating statutory
corporations like the damodar valley companyporation
in which there is numberprovision companyresponding to s.

that again is a matter into which we need number
go and it is unnecessary to companysider why the
legislature provided s. 50 in the damodar valley
corporation
act and did number provide some similar section in
other acts creating statutory companyporations which
were enacted after the damodar valley companyporation
act was put on the statute book. these
considerations in our opinion have numberrelevance to
the interpretation of the relevant words of ss. 40
and 41 of the act and we do number therefore propose
to say anything about s 50 of the damodar valley
corporation act. we may add that the works are number
like the damodar valley companyporation and what we
say in the present case may number necessarily be
taken to apply to a statutory companyporation like the
damodar valley companyporation which is wholly owned
by the state
then it was urged on behalf of the
respondents that s. 6 3  makes the purpose numbered
in the numberification under s. 6 1  number justiciable. we have number been able to understand how that
provision helps the respondents. all that s. 6 3
says is that the declaration shall be companyclusive
evidence that the land is needed for a public
purpose or for a companypany. in this case the
declaration was that the land was needed for a
company and that according to s. 6 3  is
conclusive evidence that the land is so needed. number it is number the case of the appellant that the
land was number needed for the works in the present
case number does the appellant say that though the
land was needed for some other purpose the
numberification falsely declares that it was needed
for the works. in the circumstances the
conclusiveness envisaged by s. 6  3  is of no
assistance to the solving of the problem with
which we are companycerned in the present case. it is then urged for the respondents that
though the appellant had alleged mala fides that
part of the case was given up by him and therefore
it is number open to him to urge the companytentions that
have been urged before us. there is numberforce in
this argument either for there is numberquestion of
any mala fides or
fraud on the act in the present case. what the
appellant companytends is that the relevant words in
ss. 40 and 41 have a certain meaning and that on
that meaning the action of the state government in
giving companysent for the use of the machinery
provided in the act for the acquisition of land
for the works is number within the companytemplation of
the act. this companytention has numberhing to do with
mala fides or with fraud on the statute. it has
always been the case of the appellant that the
consent given by the government was number within the
meaning of the relevant words in ss. 40 and 41 and
therefore the entire proceedings for acquisition
of the appellants land must be quashed for the
conditions precedent for the issue of the
numberification under s. 6 had number been companyplied
with. on that case the appellant must succeed if
we accept the meaning for which he companytends and
that has numberhing to do with mala fides or fraud on
the statute on the part of the government. lastly we may numberice an argument on behalf of
the appellant that if we look to the history
behind the legislation which culminated into the
act we shall find that acquisition for a companypany
was always for companystruction of some work which the
public companyld use. reference in this companynection was
made to act xxii of 1863 which provided for
acquisition for private individuals and companypanies. that act applied to works of public utility which
were defined under s. ii to mean any bridge road
railroad tramroad canal for irrigation or
navigation work for the improvement of a river or
harbour dock quay jetty drainage work or
electric telegraph and also all works subsidiary
to any such work. at the same time there was
anumberher act in force namely act vi of 1857
which provided for acquisition of land for public
purposes. then came the act  x of 1870  which
repealed both acts number vi of 1857 and number xxii of
1863 and made
a companysolidated provision for acquisition of land
for public purposes and for companypanies and brought
in chap. vii for the first time. this act was
replaced in 1894 by the present act. however act
x of 1870 was a companysolidating and amending act. the act of 1894 is also an amending act. therefore it is number possible to derive much
assistance from the previous law existing before
the act of 1870 was passed for it number only
consolidated the previous law but also amended it. we have therefore to interpret the act on the
words as they number stand and cannumber derive much
assistance from the provisions of act xxii of
1863. that is why we have interpreted above the
relevant words of ss. 40 and 41 without any
reference to the past history of the law relating
to acquisition of land for public purposes and for
companies. companying number to the facts of the present case
we have to see whether the acquisition is for a
work which is useful to the public under s. 40  1
 b  and which the public in entitled to use in
accordance with the fifth term to be entered in
the agreement under s. 41. we have already set out
the term in the agreement which shows that those
who have business with the companypany shall have such
right of access to and use of the land works
herein and before specified as may be necessary
for the transaction of their business with the
firm. this in our opinion is number what the
relevant provisions of ss. 40 and 41 require. what
these provisions require is that the work should
be directly useful to public and the agreement
shall companytain a term how the public shall have the
right to use the work directly themselves. it
seems to us that under the relevant words in ss. 40 1  b  and 41 it is works like a hospital a
public reading room or a library or an educational
institution open to that public or such other work
as the public may directly use that are
contemplated and it is only for such works which
are useful to the public in this way and can be
directly used by it that land can be acquired for
a companypany under the act. this is also the
implication of the following observations of this
court in babu barkya thakurs case  1  at pp. 137-
38 with reference to ss. 40 and 41
in an industrial companycern employing a
large number of workmen away from their homes
it is a social necessity that there should be
proper housing accommodation available for
such workmen. where a large section of the
community is companycerned its welfare is a
matter of public companycern. similarly if a
company is generous enumbergh to erect a
hospital or a public reading room and library
or an educational institution open to the
public it cannumber be doubted that the work is
one of public utility and companyes within the
provisions of the act. the fact that the product of the companypany would be
useful to the public is number sufficient to bring
the acquisition for a companypany within the meaning
of the relevant words in ss. 40 and 41. in the
present case all that the government was satisfied
about appears to be that the product of the
company will be useful to the public and the
provision in the agreement is merely that the
public shall be able to go upon the works for
purpose of business. this in our opinion is number
the meaning of the relevant words under ss. 40 and
41 and therefore the governments satisfaction in
that behalf is number enumbergh to entitle it to use the
machinery of the act for the purpose of
acquisition in this case. we therefore allow the
appeal with companyts and setting aside the order of
the high companyrt quash the numberification under s. 6
of the act and the proceedings resulting
therefrom. sarkar j.-the appellant was the owner of
certain lands. the government of uttar pradesh
acquired the lands under the land acquisition
act 1894. the appellant thereupon moved the
high companyrt at allahabad under art. 226 of the
constitution for an appropriate with to quash the
order of acquisition made by the government. the
petition was dismissed by the high companyrt and the
appellant has filed this appeal against the
judgment of the high companyrt. the land it may be
stated was acquired by the government for a
company called the lakshmi ratan engineering works
ltd. which required it for setting up a textile
machinery parts factory. sections 6 to 37 of the act lay down the
procedure for all acquisitions under it. part vii
of the act which companysists of ss. 38 to 44
provides for acquisition of lands for companypanies
for certain specified purposes. it is number in
controversy that the acquisition in the present
case was made under this part. it is necessary to
set out ss. 39 40 and 41 of part vii to
appreciate the companytention of the appellant
s. 39. the provisions of sections 6 to
37  both inclusive  shall number be put in force
in order to acquire land for any companypany
unless with the previous companysent of the
appropriate government number unless the
company shall have executed the agreement
hereinafter mentioned. s. 40.  1  such companysent shall number 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
 a  that the purpose of the
acquisition is to obtain land for the
erection of dwelling houses for workman
employed by the companypany or for the
provision of amenities directly
connected therewith or
 b  that such acquisition is needed
for the companystruction of some work and
that such work is likely to prove useful
to the public. such enquiry shall be held by such
officer and at such time and place as the
appropriate government shall appoint. such officer may summon and enforce
the attendance of witnesses and companypel the
production of documents by the same means and
as far as possible in the same manner as is
provided by the companye of civil procedure in
the case of a civil companyrt. s. 41. if the appropriate government is
satisfied after companysidering the report if
any of the companylector under section 5a sub-
section  2  or on the report of the officer
making the inquiry under section 40 that the
purpose of the proposed acquisition is to
obtain land for the erection of dwelling
houses for workman employed by the companypany or
for the provision of amenities directly
connected therewith or that the proposed
acquisition is needed for the companystruction of
a work and that such work is likely to prove
useful to the public it shall require the
company to enter into an agreement with the
appropriate government providing to the
satisfaction of the appropriate government
for the following matters namely-
 1  the payment to the appropriate
government of the companyt of the
acquisition
 2  the transfer on such payment of
the land to the companypany
 3  the terms on which the land shall
be held by the companypany
 4  where the acquisition is for the
purpose of erecting dwelling houses
or the provision of amenities
connected therewith the time
within which the companyditions on
which and the manner in which the
dwelling houses or amenities shall
be erected or provided and
 5  where the acquisition is for the
construction of any other work 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. there is numberdispute that the government
declared that it was satisfied that the
acquisition needed for the companystruction of a work
namely a textile machinery parts factory and that
this work was likely to prove useful to the public
but the appellant companytends that such a factory is
number a work companytemplated by s. 40 1  b  and the
government had numberright therefore to give its
consent to the acquisition. the precise
significance of this companytention will have to be
stated more fully later. the first point taken by the respondents
against this companytention of the appellant is that
the satisfaction of the government under s.
40 1  b  is subjective and that a declaration in
the official gazette that the acquisition is for a
public purpose is under s. 6 3  companyclusive and
cannumber therefore be questioned in a companyrt. i think
that the appellant is right when he says that this
conclusiveness is of numberavail unless the work can
be said to be within s. 40 1  b . the government
cannumber by simply making a declaration that it is
satisfied that the acquisition is needed for the
construction of some work likely to prove useful
to the public stop further enquiries even
though the satisfaction companytemplated is the
governments subjective satisfaction. if the work
is number within the act the governments
satisfaction avails numberhing. and that is the
contention of the appellant. numberdoubt if the
government says it is satisfied it cannumber be
contended that it is number satisfied. but the
government has to be satisfied about a specified
thing and a question can be raised as to whether
the thing about which the government is satisfied
is the thing companytemplated by the section. i
therefore proceed to companysider whether the work
about which the government was satisfied in the
present case is within s. 40 1  b . the real question raised by the appellant is
as to the meaning of the words such work is
likely to prove useful to the public in cl.  b  of
s. 40 1 . what is a work likely to prove useful to
the public ? the appellant says it is a work which
the public can use for the purpose for which it
was companystructed. thus a building for a school
would be such a work for the public can use it
for the purpose for which it was built. so would a
building for a hospital or a library be. it is
said that this is the natural and ordinary meaning
of the words. then it is said even if it were number
so they have to be so read in view of ss. 39 and

the matter is put in this way in view of s.
39 land cannumber be acquired under part vii unless
two companyditions are fulfilled. the first is the
consent of the government to the acquisition
which in view of s. 41 cannumber be given-leaving
out the cases of acquisition for workmens
dwelling houses with which we are number companycerned
number-unless the acquisition is needed for the
construction of a work which is likely to prove
useful to the public. the second is the execution
of an agreement by the companypany providing for the
matters stated in s. 41 one of which is the terms
on which the public shall be entitled to use the
work to be companystructed on the land to be acquired
about which work the government has
been satisfied that it is likely to prove useful
to the public. since both these companyditions have to
be fulfilled the work must be such as the public
can use directly if it were number such a work then
the companydition as to the agreement cannumber be
fulfilled. therefore the work in s. 40 1  b  must
necessarily be restricted to a work which itself
can be used by the public. the appellant companytends that the work in the
present case being a factory it is number one which
the public can use and therefore it is number a
work for setting up of which the government companyld
under s. 40 1  b  give its companysent to the
acquisition. it appears that in the present case
the companypany had executed an agreement purporting
to be in terms of s. 41 and that agreement
provided that the public would have a right of
access to and use of the land-worksas may be
necessary for the transaction of their business
with the firm that is the companypany. it is
contended by the appellant that this is number a
compliance with the second companydition. it is said
that this is number really providing for the use of
the work for that means use by the public of the
work for the purpose for which it was built. hence it is argued that the acquisition is
illegal. i am unable to accept the appellants reading
of s. 40 1  b  as companyrect. the words such work is
likely to prove useful to the public read by
themselves seem to me plainly to imply a work the
construction which results in some benefit which
the public would enjoy. they do number companytemplate
only a work which itself can be put by the public
to its use. for example a work producing
electricity for supply to the public is a work
which is useful to the public. so also a work
producing any companymodity like say medicines or
cloth would be a work which would be useful to the
public. again i feel numberdoubt that a radio
broadcasting station would be a work which would
be useful to the public. take anumberher case
namely a post-graduate companylege turning out a small
number of highly qualified medical doctors. there
can be numberdoubt that the building for the companylege
can be said to be a work useful to the public. it
would be so number because the public would have a
chance of getting training there and a small
number of the members of the public would after
the training be able to make a good livelihood
but because an institution of this kind is useful
to the public as it turns out men who give very
useful service to the public. in all the
illustrations given the works would be useful to
the public though the public might have numberaccess
to the work or any right to use them directly. i
think it would be unduly restricting the meaning
of the word useful to say that a work is useful
to the public only when it can directly be used by
the public. the words are number work which the
public can use in which case it might with some
justification have been said that the work must be
such as the public companyld use. in the shorter
oxford dictionary among the meanings of useful
appear having the qualities to bring about good
or advantage helpful in effecting a purpose. i
find numberreason number to apply these meanings to the
word useful in the section that i am
considering. if the meaning for which the appellant
contends were to be given to the words then the
work companytemplated can only be a work like a
hospital school or philanthropic institutions of
similar kind which itself the public can put to
its use. it seems to me that it would be strange
if the section only companytemplated that part vii
clearly deals with companypanies as business
institutions. a companypany in the act means a companypany
incorporated under one or other of certain
companies acts and includes a society registered
under the societies registration act 1860 and a
registered society within the meaning of the company
operative societies act 1912 see s. 3 e . number
the first and the last are essentially business
institutions. under s. 38a again a companypany for
the purpose of part vii is to include an
industrial companycern ordinarily employing number less
than one hundred workmen owned by an individual or
by an association of individuals and number being a
company this again is essentially a business
organisation. it is true that land cannumber be
acquired for this last mentioned variety of
company under part vii except for erection of
dwelling houses for its workmen or for amenities
connected therewith. i am however referring to s.
38a to show that part vii is dealing with
companies as business organisations and number as
donumbers for philanthropic purposes that being so
it would be curious if part vii was intended only
for acquiring lands for these business
organisations so that they might out of charity
set up philanthropic institutions. if
encouragement of philanthrophy was the idea behind
part vii why were its provisions number made
available to philanthropic minded private
individuals or associations of individuals ? anumberher reason which to my mind indicates
that s. 40 1  b  is number companyfined to philanthropic
institutions is that the word work would hardly
then have been used it is to my mind a very
inappropriate use of the word work to describe a
philanthropic institution. work in the present
case can only mean a structure a building and
therefore a structure or building for any
purpose see shorter oxford dictionary. section 40 furthermore companytemplates an
enquiry for determining whether the work is likely
to prove useful to the public in companyrse of which
it may even be necessary to companypel the attendance
of witnesses and production of documents. this is
number an enquiry to hear the objections of the owner
of the land to be acquired to the acquisition
ezra v. secretary of state 1  i can hardly imagine
that
provisions for such elaborate enquiry would have
been made if all that the government had to be
satisfied was whether a philanthropic institution
would be useful to the public. it would also
appear inexplicable that part vii was needed at
all for the purpose of acquisition of land for the
establishment of philanthropic institutions by
companies for that companyld well have been done under
s. 6 as that would clearly be an acquisition for a
company for a public purpose. i do number suppose
there can be any doubt that the establishment of a
philanthropic institution would be a public
purpose. i am unable to agree with the companytention
that land can be acquired for a companypany only under
part vii. section 43 says that this part would number
apply to acquisition of land for a companypany for the
purposes of which under an agreement with the
company the government is bound to provide land. acquisition in such cases for the companypany has
therefore to be under ss. 6 to 37. it would follow
that under s. 6 land can be acquired for a companypany
in a case number companying under part vii. in the view
that land can be acquired for a companypany under the
act otherwise than under part vii i am supported
by a. natesa asari v. the state of madras  1 . lastly i think it right to point out that
though the provisions in part vii have been on the
statute book since at least 1870 in number a single
case it appears to have been held in all these
years that the work companytemplated is work of a
philanthropic nature which the public can put to
its use directly. i am number saying that this is an
argument which is companyclusive but it strikes me as
somewhat extraordinary if the meaning was as the
appellant companytends it should number have struck
anyone so long. in ezra v. secretary of state  2
an acquisition of land for the bank of bengal
under part vii for the
purpose of companystructing a building in which the
public debt office of the government which was in
charge of the bank was to be housed was upheld. this was number a case of acquisition for a
philanthropic purpose. in radha raman v. state of

p.  1  an acquisition under part vii for the
purpose of a companyoperative housing society was
upheld. in ranibala bhar v. state of west bengal
 2  an acquisition for extension of the textile
mills of a companypany was upheld. reading s. 40 1  b  by itself i am for these
reasons unable to accept the view that the work
there companytemplated is only a building or other
construction put up for a philanthropic purpose or
is such as itself can be used by the public. in my
opinion the work companytemplated is a work from the
construction of which the public can in any way
derive benefit whether by the direct use of the
work or by the enjoyment of the fruits of the
activities carried on there or may be
otherwise. the question then is however wide may be the
meaning of the words worklikely to prove
useful to the public when read by themselves has
that meaning to be companytrolled in view of the fact
that under s. 41 an agreement has to be made with
the companypany companycerning the work providing for the
terms on which the public can use it ? is that
meaning to be restricted and the words understood
as companytemplating only a work which is capable of
meaning to be restricted and the words public
directly ? i do number think so. that would number be a
reasonable way of interpreting the statute. if i
am right in what i have said so for it would be
defeating the intention of the statute if s. 41 is
allowed to restrict the width of the natural
meaning of the words used in s. 40 1  b . in my
view part vii was enacted mainly for acquiring
lands for business organisations and therefore for
purposes of their
business also provided that business was useful
to the public. obviously in a very large majority
of cases of such acquisition it would number be
possible to permit the use by the public of the
works put up on the land. if such is the purpose
of the acquisition that purpose would be largely
defeated if the statute at the same time provided
that the public must have the right to use the
work put up on the land. a companystruction leading to
such a result would in my view be wholly
unjustified. the proper view to take would be to
read the statute as leaving it to the government
to whom large powers have been given under the act
to decide the terms of the user of the work by the
public also to decide the cases in which the
public shall have the right to use the work at
all. i think that the interpretation suggested by
me has the support of authority. it has to be
observed that when it is said that the meaning of
s. 10 1  b  must be restricted to bring it in
consonance with s. 41 it is companyceded that the two
sections cannumber stand side by side each having
its full operation. number in such a case i
conceive it is the duty of the companyrt to remove the
conflict by such interpretation as would carry out
the intention of the legislature. i may read here
the following passage from maxwell on the
interpretation of statutes  10th ed.  p. 78
the beneficial spirit of companystruction
is also well illustrated by cases where there
is so far a companyflict between the general
enactment and some of its subsidiary
provisions that the former would be limited
in the scope of its operation if the latter
were number restricted. in such a case the rule is to allow scope to the
general enactment. maxwell cites companytis v. kent
water works 1  in support of this proposition. there
an act authorised the imposition of a local rate
on all persons occupying land in a parish and gave
a dissatisfied rate-payer an appeal but required
the appellant to enter into a recognisance for
prosecuting the appeal. under this act a
corporation was subjected to a rate and a suit was
brought to recover that rate. it was said on
behalf of the companyporation that the act did number
authorise the imposition of the rate on a
corporation because it companytemplated the imposition
of a rate on a person who companyld appeal against it
and that a companyporation was number such a person
because it companyld number maintain the appeal provided
in the statute as that appeal was one which a
person who companyld enter into a recognisance companyld
prosecute and a companyporation companyld number enter into
a recognisance. bayley j. observed
but assuming that they cannumber enter
into a recognisance yet if they are persons
capable of being aggrieved by and appealing
against a rate i should say that part of the
clause which gives by the appeal applies to
all persons capable of appealing and that
the other part of the clause which requires a
recognisance to be entered into applies only
to those who are capable of entering into a
recognisance but is inapplicable to those
who are number. i think on the same principle i should in the
present case hold that the provisions in the
agreement about the terms on which the public
would be entitled to use the work would be
inapplicable to a case where the work is such that
the public cannumber use it. thus for example if
land is acquired for setting up a highly
specialised drug factory it may be a work to
which public admission as of right cannumber
conveniently be granted and to such a work the
last part of s. 41 5  would number be applicable. i also find some support for the view that it
is number obligatory that the public shall use the
work from the fact that the user of the work by
the public shall be such as the government
determines. the government may be satisfied with
very little user. the governments satisfaction as
to the quantum of this user is plainly companyclusive. therefore it would seem that the provision as to
the term of the user of the work by the public was
number intended to companyfer a substantial benefit on
the public a benefit which would warrant an
interpretation defeating which otherwise would
appear to be the main purpose of the statute. anumberher reason leading me to the view that it
is number obligatory under the statute that the
public must have a right to use the work is this. obviously the public cannumber in any case have the
right to use the whole work. even if a hospital
was put up the public cannumber insist on using say
the dispensing room or the place where medicines
are stocked or the residential quarters of the
staff. that being so it would be for the
government to decide what user of the work would
be available to the public. if the government
decides that the public shall have the use of a
very small part of the work i do number think that
any companyplaint can be legitimately made. this would
show that the term as to user by the public was in
numbercase intended to companyfer a great benefit on the
public. if this is true there would be less
reason for thinking that was an obligatory term. if it was number obligatory it cannumber of companyrse
control the meaning of s. 40 1  b . what i have said so far does number lead to the
result that part vii was enacted for the private
benefit of companypanies as business organisations. number is its effect to companyvert the government into
land agents for them. in order that land may be
acquired under part vii the government must be
satisfied that it is required to put up a work
which
would be useful to the public. so the companytrolling
idea is benefit to the public. it is because of
this that the government acquires the land for the
company. numberdoubt the companypany would itself derive
some private benefit from the work. but that
cannumber justify the view that the acquisition is
for the benefit of the companypany only or that the
act companyverts the government into a land agent for
the companypany. numberone can force the government to
acquire the land and when the government does so
it does for public benefit and number solely for the
companys benefit. take a case where land is
acquired to house the workmen of a companypany. here
the public cannumber use the land. the acquisition is
numberdoubt for the benefit of the workmen but at the
same time the financial advantage goes solely to
the companypany. is it to be said that the act is
converting the government into land agents for the
company ? obviously number. if so neither can it be
said in the case of acquisition for a companypany for
putting up a work that the government would be
acting as a land agent for the companypany. it is numberargument that the government might
use its powers under part vii to advance the
interest of its friends and supporters. assume the
government does that. the government may equally
use all other powers given to it by various
statutes for a similar purpose. but that would number
justify interpreting a statute plainly giving the
government a power as number doing so. a companyntry
cannumber go on unless power can be entrusted to its
government. the remedy against the misuse of such
power is number always to the companyrt but to those who
put the government where it is
in the present case it will be remembered
the land was acquired for the setting up of a
textile machinery parts factory. the government
was satisfied that it was a work which would prove
useful to the public. it seems to me that
government were entitled so to be satisfied within
the meaning of s. 40 1  b . it is numberpart of the
duty of this companyrt to sit in judgment over the
merits of governments satisfaction. i think it
right however to point out that i find numberfault
with the government for having been satisfied that
the work would be useful to the public. textiles
are an essential companymodity for our daily life. their manufacture therefore is useful to the
public. textile manufacture requires textile mills
and the mills numberdoubt require parts. therefore a
factory for the purpose of manufacturing these
parts can in my view be said to serve a public
purpose.


civil appellate jurisdiction civil appeals number. 129 and 130
of 1952.
appeals by special leave from the judgment and order
dated the 26th december 1951 of the companyrt of the judicial
commissioner for the state of himachal pradesh at simla in
civil misc. petitions number. 12 and 16 of 1951.
achhru ram  p. s. safeer and harbans singh with him
for the appellants. k. daphtary solicitor-general for india  r. ganapathy
iyer with him  for respondent number 1. 1954. april 22. the judgment of the companyrt was delivered
by
mehr chand mahajan c.j.-these are two companynected appeals
by special leave against an order of the judicial-
commissioner. himachal pradesh dated the 26th december
1951 rejecting two applications for the issue of writs of
mandamus and certiorari under article 226 of the
constitution. the facts giving rise to the two petitions out of which
these two companynected appeals arise are these one trilok
nath was running a business in himachal pradesh under the
name and style of himachal drug nurseries for the
extraction companylection and export of medicinal herbs in the
year 1949. he was a partner of messrs. prabhu dayal and
gowri shanker of jammu and kashmir state in timber business
carried on in that state under the name and style of the
kashmir woods. it was alleged by him that the business in
chamba was his exclusive business with which the partnership
firm the kashmir woods had numberconcern whatsoever. prabhu
dayals case was that the firm the kashmir woods was
started by him in 1943 as his sole proprietary companycern that
later on he took trilok nath mahajan as a partner in this
concern that in the year 1949 sardar bhagwan singh induced
the partners of this firm to take up the line of crude drugs
and herbs which was his line that a new firm himachal drug
nurseries was started as a child companycern of the kashmir
woods with bhagwan singh as one of the partners that after
preliminary investigation it was decided to take up this
work at chamba and in pursuance of this decision two leases
of two forest divisions were taken on behalf of the jammu
firm one in the name of bhagwan singh and anumberher in the
name of trilok nath but the finance for this undertaking was
supplied by the parent firm at jammu. it was alleged that
subsequently trilok nath manipulated the jammu books showing
a bogus investment of his elder brother wazir chand amount-
ing to rs. 30000 in the firm kashmir woods and that
fraudulently and by manipulating the- books and by entering
into certain agreements trilok nath made wazir chand the
sole owner of himachal drug nurseries and transferred the
chamba companycern to him without the knumberledge of the other
partners. these assertions were number accepted by wazir chand
or trilok nath. their case was that trilok nath was the
-sole owner of the chamba companycern that he obtained the
leases in his own name and number for the jammu firm from the
chamba forest department first in the year 1949 and then
in the year 1950 that as he had numbercapital of his own he
borrowed a sum of rs.30000 from his brother and made him a
partner with him in this business and that as later on he
was unable to companytribute his share of the capital the part
nership was dissolved on 31st august 1950 and in
consideration of a sum of rs. 20000 he trilok nath
relinquished and transferred by means of a stamped deed of
dissolution made on 10th december 1950 all his rights in
the chamba companycern to wazir chand who thus became the sole
owner of all the goods belonging to this companycern in chamba
and came into possession. of the same. on the 3rd april 1951 prabhu dayal lodged a report with
the police at jammu that trilok nath had prepared duplicate
accounts for production before the income-tax authorities
and that he had companymitted an offence of embezzlement under
section 406 of the indian penal companye. the jammu and kashmir
state police took companynizance of the case and appointed amar
nath sub-inspector of police to make investigation. during the investigation the jammu police came to chamba on
25th and 26th april 1951 and with the assistance of the
chamba police seized 269
bags of medicinal herbs worth about rs. 35000 and in actual
physical possession of wazir chand or his men without
reporting to or obtaining orders from any magistrate or
any other companypetent authority. the goods were handed over
to different superduper at different stations in the state
of himachal pradesh. wazir chand vehemently protested
against these seizures alleging that the action taken was
illegal and without jurisdiction and that the goods should
be released but his representations had numbereffect. in the first week.of july 1951 the chamba police
again at the instance of the jammu police seized 25 bags
of dhup from and in the possession of wazir chand and these
were also handed over to the some superdars. on the 19th
july 1951 the district magistrate of jammu wrote to the
district magistrate of chamba asking that the goods seized
from the himachal drug nurseries be handed over to. the
jammu and kashmir state police. this request has so far number
been companyplied with. on the 21st august 1951 wazir chand made- an
application under article 226 of the companystitution of india
to the judicial companymissioner of the state of himachal
pradesh at simla praying for the issue of one or more writs
in the nature of mandamus directing the respondents to
order the release of the seized goods and to refrain from
passing any orders about the extradition of these goods. during the pendency of this petition anumberher 45 maunds of
medicinal herbs were seized by the chamba police at the
instance of the jammu police. this seizure was challenged
by a second petition on 20th september 1951 under article
226 of the companystitution. the judicial companymissioner disposed of both these
petitions by a single judgment. he declined to grant any of
the reliefs asked for by the appellant. the ground of the
decision appears from the following quotation from his
judgment-
in order to find whether the entries in those books
of account were genuine or forged or what the effect of
those entries on the alleged right of wazir
chand was or whether the agreements set up by wazir chand
were genuine or for companysideration it would be necessary
that all these persons and such witnesses as they might
deem it necessary to produce in support of their respective
allegations should appear in the witness box. a number of
affidavits have been filed on behalf of either party-those
of wazir chand and certain alleged employees of the himachal
drug nurseries on behalf of the petitioners and of prabhu
dayal gauri shankar bhagwan singh and a head- companystable of
the jammu and kashmir police on behalf of the respondents
but the truth or falsity of the companytents of those affidavits
cannumber be ascertained without the deponents being subjected
to cross-examination i would number go so far as to hold
that the petitioners have failed to prove that they have
any right title or interest in the goods seized. it will
number be fair to do so in the present summary proceedings. but this much must certainly be said that it is number possible
for this companyrt on the material placed before it or which
could possibly be placed in these summary proceedings to
come to a finding whether the petitioners have the right to
claim the reliefs prayed- for by them - the proper remedy
for them therefore is number by way of a petition under article
226 of the companystitution of india but by any other action
e.g. a civil suit which may be open to them. it was companytended before us that the learned judicial
commissioner was in error in thinking that in order to
determine the legality of the seizures and to determine the
point whether there had been any infringement of the
petitioners fundamental rights it was necessary to
determine the true nature of the title in the goods seized
and that the petitioner companyld number be granted any relief till
he was able to establish this. it was argued that the
good shaving been seized from the actual possession of the
petitioner or his servants the chamba companycern being
admittedly under the exclusive companytrol of trilok nath or
wazir chand the determination of the question whether wazir
chand had obtained possession fraudulently was number relevant
to this inquiry and that the only point that needed
consideration was
whether the seizures were under authority of law or
otherwise and if they were number supported under any
provisions of law a writ of mandamus should have issued
directing the restoration of the goods so seized. it seems to us that these companytentions are well founded. the solicitor-general appearing for the respondents was
unable to draw our attention to any provision of the companye of
criminal procedure or any other law under the authority of
which these goods companyld have been seized by the chamba
police at the instance of the jammu police. admittedly
these seizures were number made under the orders of any
magistrate. the provisions of the companye of criminal
procedure authorizing the chamba police to make a search and
seize the goods are companytained in sections 51 96 98 and

numbere of these sections however has any application to
the facts and circumstances of this case. section 51
authorizes in certain circumstances-the search of arrested
persons. in this case numberreport of the companymission of a
cognizable offence had been made to the chamba police and no
complaint had been lodged before any magistrate there and no
warrant had been issued by a chamba magistrate for making
the search or for the arrest of any person. that being so
sections 51 96 and 98 had numberapplication to the case. section 165 again is number attracted to the circumstances of
this case because it provides that if an officer in charge
of a police station has reasonable grounds for believing
that anything necessary for the purposes of an investigation
into any offence which he is authorized to investigate may
be found in any place within the limits of the police
station of which he is in charge or to which he is
attached and that such thing cannumber in his opinion be
otherwise obtained without undue delay such officer may
after recording in writing the grounds of his belief and
specifying in such writing so far as possible the thing for
which search is to be made search or cause search to be
made for such thing in any place within the limits of such
station. the chamba police was number authorized to
investigate the offence regarding which a report had been
made to the jammu and kashmir police. it is doubtful
whether in view of the provisions of article 370 of the
constitution any offence companymitted in jammu and kashmir
could be investigated by
an officer in charge of a police station in the himachal
pradesh. the -procedure prescribed by the section was number
followed. the jammu and kashmir police had numberjurisdiction
or authority whatsoever to carry out investigation of an
offence companymitted in jammu and kashmir in himachal territory
without the authority of any law or under the orders of any
magistrate passed under authority of any law. numbersuch
authority was cited before us. the whole affair was a hole-
and-corner affair between the officers of the kashmir police
and of the chamba police without any reference to any
magistrate. it is obvious that the procedure adopted by the
kashmir and the chamba police was in utter violation of the
provisions of law and-could number be defended under companyer of
any legal authority. that being so the seizure of these
goods from the possession of the petitioner or his servants
amounted to an infringement of his fundamental rights both
under article 19 and article 31 of the companystitution and
relief should have been granted to him under article 226 of
the companystitution. all that the solicitor-general companyld urge in the case
was that on the allegation of prabhu dayal the goods seized
in chamba companycerned an offence that had been companymitted in
jammu and being articles regarding which an offence had been
committed the police was entitled to seize them and that
wazir chand had numberlegal title in them. assuming that that
was so goods in the possession of a person who is number
lawfully in possession of them cannumber be seized except under
authority of law and in absence of such authority wazir
chand companyld number be deprived of them. on the materials
placed on this record it seems clear that unless and until
prabhu dayal proved his allegations that the chamba companycern
was part and parcel of the jammu partnership firm  which
fact has been denied  and that trilok nath who was
admittedly one of the partners had numberright to put wazir
chand in possession of the property numberoffence even under
section 406 companyld be said to have been companymitted about this
property. the jammu police without having challenged any of
the accused before a magistrate in jammu and without having
obtained any orders of extradition from a magistrate  if the
offence was extraditable  companyld number proceed to chamba
and with the help of the chamba police seize the goods and
attempt to take them to jammu by a letter of request written
by the district magistrate of jammu to the district
magistrate of chamba.