JUDGMENT
1. These four special appeals are directed against the order passed by Srivastava, J. on 29-1-1962 on writ petitions Nos. 484 of 1901 and 485 of 1961. Special Appeals Nos. 245 of 1962 and 246 of 1962 have been filed by Shanti Nagar Co-operative Housing Society Limited, hereinafter referred to as the Society, while special appeals Nos. 484 of 1962 and 485 of 1962 have been tiled by the State of Uttar Pradesh. The Society is registered under the U. P. Co-operative Societies Act. The objects of the society are:
(a) to buy or acquire land by lease, exchange or otherwise,
(b) to lay out and to suit the requirements of members and to prepare plans and estimates for the construction of building thereon
(c) to build or cause to be built residential houses or other buildings for the convenience of members, and for this purpose to purchase in bulk the necessary building material to start brick lime and other kilns and to provide necessary technical guidance and supervision.
(d) to develop a co-operative colony and it necessary to establish and maintain therein a store, a common mess, a transport service, and other social, re-creative and educational institutions for the convenience and benefit of the members
(e) to bold, sell, mortgage, lease out on hire, or on hire purchase system, give on lease or otherwise dispose of land, houses, house sites, buildings and all other property, movable and immovable, an may be necessary for carrying out the objects of the society.
(f) to advance loans to members for building houses on easy terms, and
(g) to do all such things as may be necessary or expedient for accomplishment of the aforesaid objects and for the comfort convenience and good of its members.
2. The State of Uttar Pradesh started proceedings for acquisition of land situated in villages Etah and Choncha Bangaon for the purposes of the society. A notification under Section 4 of the Land Acquisition Act, hereinafter referred to as the Act was published in the State Gazette dated 10-8-1957. In that notification it was stated under the heading "For what purpose required' For Shanti Nagar Co-operative Housing Society Limited, Etah". The deed embodying the agreement between the State of U. P and the society contemplated by Section 41 of the Act wan executed on 24-3-1958 and published in tbe State Gazette dated 19-7-1958 Then followed the notification under Section 8 of the Act and in that notification the purpose of the acquisition was given as "for the construction of residential houses for the members of the Shanti Nagar Co-operative Housing Society Limited, Etah." In the agreement referred to above there was a clear recital to the effect that the Government was satisfied that the acquisition of land was needed for the construction of a work, viz., construction of houses etc. for members of co-operative society, and that such work was likely to be useful to the public.
3. Writ Petitions Nos. 484 of 1961 and 485 of 1961 were filed in this Court by persons whose property or right in property was being acquired. Those petitions were heard by Srivastava, J. before whom only the two following submissions were made:
(1) That the acquisition was not being made for a public purpose in so far as it was being made for a company, and the works would not be directly useful to tbe public and (2) the acquisition proceedings were not bona fide and even though lot of other land was available the land belonging to the petitioners had been chosen for acquisition.
The learned single Judge rejected tbe second submission made on behalf of the petitioners on the finding that the petitioners had not made out a case of mala fide acquisition. The first submission, however, prevailed with him. Placing reliance upon R. L. Arora v. State of U. P., AIR 1962 SC 764 the learned single fudge held that the acquisition was not made for a public purpose within the meaning of Section 40 of the Act and consequently the proceedings for the acquisition of tbe land which was for a company were Illegal and void He, therefore, quashed the proceedings In respect of those plots of land only which belonged to the petitioners in the two writ petitions. This obviously he did because all the persons whose land was being acquired bad not joined in the two writ petitions heard by Srivastava, J.
4. Subsequent to the decision of Srivastava, J., on 20-7-1962 the Land Acquisition (Amendment) Ordinance, 1962, hereinafter referred to as the Ordinance, was promulgated by the President This Ordinance was superseded by the Land Acquisition (Amendment Act, 1962), hereinafter referred to as the amending Act. By virtue of Section 2 of fee amending Act Section 3 of the Act was amended in so far that in Clause. (e) of the parent Act the following words were added at the end namely:
or any other law relating to co-operative societies for the time being in force in any State Section 8 of the amending Act amended also Section 40 of the Act (principal Act) by inserting Clause (aa) after Clause (a) The said Clause (aa) reads as follows:
"that such acquisition is needed for construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which Is for a public purpose; or"
Some other sections of the principal Act were also amended
5. We will refer to them if and when necessary to do so Section 7 of the amending Act, however, validated certain acquisitions. That provision reads as follows:
"Notwithstanding any judgment, decree or order of any court every acquisition of land for a Company made or purporting to have been made under Part VII of the principal Act before the 20th day of July, 1962, shall, in so far as such acquisition is not for any of the purposes mentioned in Clause (a) or Clause (b) of Sub-section (1) of Section 40 of the principal Act, be deemed to have been made for the purpose mentioned in Clause (aa) of the said sub-section, and accordingly every such acquisition and any proceeding, order, agreement or action En connection with such acquisition shall be, and shall be deemed always to have been, as valid as if the provisions of Sections 40 and 41 of the principal Act, as amended by this Act, were in force at all material times when such acquisition was made or proceeding was held or order was made or agreement was entered into or action was taken.
Explanation: In this section "Company" has the same meaning In Clause (e) of Section 3 of the principal Act, as amended by this Act"
6. The only question that we have to consider is whether the conclusions drawn by Srivastava, J. are correct and as to whether or not the case of R. L. Arora, AIR 1962 SC 764 (Supra) would still be effective. The majority view in Arora's case, AIR 1962 SC 784 was expressed by Wanchoo, J in the following words:
"We have already said that the term In the agreement which shows that those who have business with the company shall have "such right of access to and use of the land/works herein and before specified as may be necessary for tbe transaction of their business with the firm". This in our opinion is not what the relevant provisions of Sections 40 and 41 require. What these provisions require is that the work should be directly useful to the public and the agreement shall contain a term how the public shall have the right to use tbe work directly themselves. It seems to us that under the relevant words in Section 40(1)(b) and 41 it is works like a hospital, a public reading room or a library or an educational Institution open to the 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 company under the Act"
7. Section 3(e) of the Act after the amendment reads:
"The expression "company" means a company registered under the Indian Companies Act, 1862 to 1890, or incorporated by the Act of Parliament or of the Governor General-in-Council or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, and a registered society within the meaning of the Co-operative Societies Act, 1912 or any other law relating to co-operative societies for the time being in force in any State".
8. The Society has been registered under the Co-operative Societies Act, 1912. There can, therefore, be no manner of doubt that the society is a company within the meaning of Clause (e) of Section 3 of the Act. Section 40 of the Act after the amendment read thus:
"40(1). Such consent shall not be given un-less the Government he satisfied either on the report of the Collector under Section 5A, Sub-section (2), or by an enquiry held as hereinafter provided ...
.... .. .... ..
(aa) That such acquisition is needed for the construction of some building or work For a company which is engaged or taking steps for engaging itself in any industry or work which is for a public purpose;
.... .. .... .."
9. There is no doubt that the acquisition is needed for construction of some building or work. The only question to be considered is whether the building or work is "for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose".
It has been contended on behalf of the petitioners respondents that Cl (aa) of Section 40 requires that the construction itself should be for a public purpose and it is not enough that the company is engaged or taking steps for engaging itself in any industry or work which is for a public purpose In other words the contention is that the construction or work must be of the nature of a hospital or an educational institution or public reading room or library. We are unable to agree. In our judgment the very purpose of Cl (aa) of Section 40 which has been introduced by the amending Act subsequent to the decision in Arora's case. MR 1982 SC 764 would be frustrated if such restricted meaning were to be given to this clause it is well known that it was due to the majority decision in Arora's case, AIR 1962 SC 764 that the Act was amended.
10. It appears to us that the purpose of Clause (aa) is to give effect to the view of Sarkar, J. (minority view) in Arora's ease, AIR 1962 SC 764.
11. Besides in our judgment the language of Clause (aa) does not support such restricted construction. The use of the word industry obviously suggests activity for profit making by those who are engaged in it and it is trite that that word does not connote philanthropic and charitable institutions like hospitals etc. As we see it the meaning of the words used in that clause is that the company in whose interest acquisition is being made must be engaged or must be taking steps for engaging itself in any industry or work which is for public purpose. In other words so long as the company is engaged in on industry or work which will be for the benefit of the public acquisition if land can lawfully be made. Even if the construc-tions which, are sought to be made may not be for public purpose in the sense of Dharamshalas of educational institutions, or reading rooms, or hospitals. It would not be material so long as the company is carrying on a work or an industry beneficial to the public.
12. Mr. Ambika Prasad, learned counsel for the petitioners-respondents next submitted that in the instant case the society is not and cannot be deemed to be engaged nor it can be treated to be taking steps for engaging itself in any industry or work which is for a public purpose In this connection some general submissions unsubstantiated by anything in the bye-laws or the material before us have been made. The only provision in the bye-laws on which reliance is placed is Clause (e) of bye-taw 3 which reads:
"to hold, sell, mortgage, lease out on hire, or on hire-purchase system, give on lease or otherwise dispose of land, houses, house sites, buildings and all other property, movable and immovable, as may be necessary for carrying out the object of the society."
13. Mr. Ambika Prasad is reading this clause after breaking ii from the context. This method is neither appropriate nor fair and does not give the correct idea of the aims and objects for which the society has been formed and the activities it is proposing to carry on. On pages 1 and 2 of this judgment we have already reproduced all the Clauses (a) to (g) of bye-law 3 inclusive of this clause (Clause (e)). When read in the setting in which this clause finds place in bye-law 3 along with the other provisions of the bye-laws it becomes absolutely clear that the society has been formed to benefit a section of the public i. e., those persons of the public who have not got residential or suitable residential accommodation in Etah. It is well settled that providing accommodation to persons who are in need of it is a public purpose. In Jinadathappa v. R.P. Sharma, AIR 1961 SC 1523 it was observed:-
"The idea of this provision is that people in need should be found accommodation. Persons in need of accommodation are the public and therefore serving their need, would be serving a public purpose."
14. It is well settled that an acquisition which benefits a section of the public is an acquisition for a public purpose. See Babu Barkya Thakur v. State of Bombay, AIR 1960 SC 1203 where it was said as follows:-
"It will thus be noticed that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited."
See also Ananda Brahma Shah v. State of Uttar Pradesh, ILR (1963) 1 All 219, Willis in his 'Constitutional Law' has at pages 808 to 810 dealt with the question of public purpose. The following passage from that book can be usefully reproduced "According to the newer viewpoint there is a public use if the thing taken is useful to the public. This makes public use for eminent domain praotically synonymous with public purpose for taxation and somewhat like social interest for public power Under this rule it is not necessary for the benefit to be for the whole community but it must be for a considerable number. The fact that the benefit also inures to a private individual is no objection."
15. The membership of the society is open to all classes of public and there is no effort either to have a close ring of interested persons or to create a monopoly in the interest of some. This would follow From bye-law 4 which reads as follows:-
"The membership of the society shall be open to all persons of good character, sound mind, and above the age of eighteen years residing or carry ing on any trade or business or profession in Etah who own no house or land and are not members of any other housing society operating within Etah provided that persons whose land has been acquired by the society shall be eligible for membership even if they are not residing or carrying on any trade or business or profession in Etah Fur ther the following classes of persons may also with the Registrar's special permission obtained individually in each case be admitted as members;
(a) Persons who own house within the area of the society but whose houses are situated in insanitary surroundings or are too small for their needs and are incapable of being adequately ex-tended or improved
(b) Persons who own land within the area of the society but that land is either not situated in a desirable locality or is too small to permit the building on it of a house of reasonable size.
(c) Persons whose ancestral home is in Etah ... . . who . . ... . . at present are residing elsewhere.
Members and heirs of the deceased members shall also be eligible for admission and they shall exercise the right of membership, but minor nominees and heirs shall exercise the right of membership only through their guardians"
16. The words reproduced above would show that all members of public irrespective of their caste, creed and colour can be members of the society provided that they fulfil the requirements of this bye-law Bye-taw 41 reads as follows;
"When land has been acquired by the society the managing committee shall with due regard to the requirements of members, lay out a plan for the society and determine the size of plots to be leased out to members for construction of houses. In this plan a portion of the land required shall be reserved for roads, lanes drains, recreation park and for such buildings of common utility as schools common hall, hospital Store, etc The plan will be subject to Registrar's approval The society may levy contributions from occupiers and owners of houses for the upkeep and repairs of roads, drains school, and parks etc."
17. There can be no manner of doubt that the common hall, the store, the roads, the lanes and the recreation parks etc., contemplated by bye-law 41 would be open to public and the drains also would benefit the public In that view of the matter the case tails even within the rule laid down by the Supreme Court in Arora's case. AIR 1962 SC 764 or in that of Barkya Thakur, AIR 1960 SC 1203 with the result that the present acquisition proceedings would be valid even without the aid of the amendments
18. However, the submissions that have been made before us are mainly on the basis of Clause (aa) of Section 40 of the Act and we see no reason to hold that the instant case does not fall under Clause (aa) aforesaid.
20. The effect of this amendment is that in U. P. the laying out of sites, the extension or planned development or improvement of existing sites is also a public purpose with the result that the purpose for which acquisition is being made in the present case is fully covered by the definition.
21. Again, the definition of public purpose as given in Section 3(f) is not exhaustive, as the use of the word 'Includes' itself suggests. What is public purpose has been a matter of judicial decision on a large number of occasions
22. In Hamabai Framjee v. Secretary of State, AIR 1914 PC 20 the Judicial Committee held that the expression 'public purpose' "whatever else it may mean must include a purpose that is an object or aim, in which the general interest of individuals. Is directly and vitallv concerned."
23. In Amulya Chandra v. Corporation of Calcutta AIR 1922 PC 333 their Lordships held that:-
"The construction and maintenance of a dharamshala is one which is likely to promote the public health, safety or convenience of the public and being so the acquisition cannot be impeached."
24. In Brij Nath Sarin v. Uttar Pradesh Government, AIR 1953 All 182 it was held by this Court that:-
"The acquisition of land for buildings by a public library was an acquisition For a public purpose."
25. In Somawanti v. State of Punjab AIR 1963 SC 151 at page 169 the Supreme Court observed as follows:-
"Public purpose' as explained by this Court in Babu Barkya's case. 1961 1 SCR 128 : (AIR 1960 SC 1203) means a purpose which is beneficial to the community. But whether a particular purpose is beneficial or Is likely to be beneficial to the community of not is a matter primarily for the satisfaction of the State Government In the notification under Section 6(1) it has been stated that the land is being acquired for a public purpose namely for setting up a factory for manufacturing various ranges or refrigeration compressors and ancillary equipment. It was vehemently argued before us that manufacture of refrigeration equipment cannot be regarded as beneficial to the community in the real sense of the word and that such equip ment will at the most enable articles of luxury to be produced But the State Government has taken the view that the manufacture of these articles is for the benefit of the community. No materials have been placed before us from which we could infer that the view of the Government is perverse or that its action based on it constitutes a fraud on its power to acquire land or is a colourable exercise by it of such power."
26. So far as the present case is concerned, it is clear that there is no intention of profit making and the venture is not in the nature of a commercial enterprise. The sole object is to provide bouse accommodation to the needy public of Etah. Consequently it is difficult to hold that the acquisition of the land for society is not for a public purpose.
27. Even if there had been any difficulty In holding that the present acquisition is Dot covered by Clause (aa) of Section 40 of the Act, the provisions of Section 7, of the Amending Act would have validated the proceedings for the acquisition of the land in the instant case. We have already reproduced that section earlier in this judgment.
28. Mr. Ambika Prasad contends that before Section 7 of the Amending Act can apply there must to fact be either complete acquisition of land or it must purport to have been made and that inasmuch as in the present case neither of the two conditions exist Section 7 is not applicable. He submits that an acquisition is made or can purport to have been made only after all the stages in the acquisition proceedings are over, possession of the land acquired has been delivered to the persons for whose benefit it is acquired and nothing further remains to be done. It is urged that unless that is done and so long as the possession is still with the petitioners respondent, neither acquisition has been made nor it purports to have been made with the result that Section 7 does not apply. In our Judgment there is no substance in this submission. Section 7 does not use the word "purport" In the sense suggested by the learned counsel. It only means that even though not made in the eye of law it would be treated to have been made.
29. In Azimunnissa v. Deputy Custodian, Evacuee Properties, AIR 1961 SC 365 it was observed at page 370 as follows:
"The word "purport" has many shades of meaning. It means fictitious, what appears on the face of the Instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable; Dicker v. Angerstein, (1876) 3 Ch. D. 600 at p. 603. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian even though the power was not exercisable. Section 8(2-A) by giving a retrospective effect to Section 8(2) of the Act makes the vesting as if it was vesting under Section 8(2) of the Act and therefore the attack on the ground of invalidity cannot be sustained."
30. That precisely is the position in the instant case By a legal fiction introduced by Section 7 of the amending Act it would be deemed that the present acquisition proceedings were valid assuming that there was any defect in them. We have however held that there is none.
31. Admittedly in the present case the award has been prepared under Section 11 of the Act and the Collector has also taken possession of the land said to be acquired. In paragraph 9 of the counter-affidavit sworn by Sri Kailash Narain Srivastava it has been categorically stated that not only the collector had obtained possession of the same. Annexure 'V to the counter-affidavit of Chhatter Pal Singh shows that the Collector has after obtaining possession of the land in dispute from the petitioners-respondents delivered the same to the society. Consequently even if there was substance in the arguments of Mr. Ambika Prasad that an acquisition can be made or can purport to have been made only after possession of the land acquired has been delivered to the persons for whose sake it was acquired were correct, the case of the appellants would not be affected in view of the circumstances that they have already obtained possession of the land in dispute. Mr. Ambika Prasad has contended that since a Division Bend of this Court consisting of Bhargava and Bhagwan Das Gupta, JJ., by an interim order dated 27-8-1962 permitted the petitioners-respondents to carry on cultivation of the land in dispute, It must be held that the transfer of possession to the appellants by the Collector was only a paper transaction. We are unable to agree. The land was and is in possession of the appellants and the petitioners-respondents were only permitted to cultivate it. The circumstance that they were permitted to cultivate does not mean that they had not lost possession earlier or that they regained possession to the exclusion of the appellants. There is a distinction between "possession" and mere temporary "occupation."
32. In any case it is not disputed in the present case that the award has been made under Section 11 of the Act and the Collector has taken possession of the same. One that was done the petitioners-respondents lost all rights over the same Section 16 of the Act reads:
"When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances."
It follows that the very day the Collector made the award and took possession of the land in dispute it vested absolutely in the Government.
33. For the reasons mentioned above we are of the opinion that Section 7 of the Act applies to the facts of the present case.
34. In the end Mr. Ambika Prasad contended that some of the land acquired is situate outside the Municipal limits of Etah and inasmuch as the area of operation of the society is limited to Etah town, the land outside the limits of the town could not have been acquired. The learned counsel assumes without any justification and without any material to support his argument, that the expression "Etah town" as used in the bye-law of the society means the territorial limits of Etah Municipality. Besides there is no evidence to show as to what are the limits of municipal area of Etah. The bye-laws of the Society do not use the expression "the Municipal area" of Etah or "the Municipal limits of Etah" The words used are:
"The area of operation of the society shall be limited to Etah Town."
35. There is nothing in these words which prohibits acquiring of land outside the municipal limits of Etah. Besides the limits of a town extend beyond the limits of its municipal area. The State Government has in the notification under Section 6, dearly stated that the land is being acquired for a public purpose. It is the Government which haa to decide whether a particular purpose is a public purpose or not The petitioners-respondents never represented to the State Government, that the land being outside the municipal limits of Etah could not be acquired for the benefit of the society. It is admitted that they did not do so and we have already said above that there is no material before us on the basis of which the learned counsel would be justified in submitting as a question of fact that a part of the land acquired falls outside the municipal limits of Etah. It is a pure question of fact whether or not it is so and there is nothing before us to show that any portion of the land is outside the limits of Etah Municipality In the absence of there being any evidence on the point learned counsel cannot be heard to submit that the acquisition is invalid on the ground that some plots of land are situated beyond the limits of the area in which the society is to operate In these circumstances we reject this submission of the learned counsel also.
36. In the end it is contended that the land acquired is comprised of Sirdari and bhumidhari plots and that inasmuch as a bhumidhar and a sirdar cannot be ejected except as provided by Sections 199 and 200 of the U. P. Zamindari Abolition and Land Reforms Act, the present acquisition could not have been made in our judgment the submission requires no serious consideration and need be mentioned only in order to be rejected Only because over the plots in dispute the petitioners respondents have bhumidhari and sirdari rights does not make the plots immune from being acquired The submission of the learned counsel is based upon a misconception of the Scheme and the provisions of Sections 199 and 200 of the U P Zamindari Abolition and Land Reforms Act The U P Zamindari Abolition and Land Reforms Act is a law which regulates land tenures in this State It has created tenure-holders in the nature of Bhumidhars, sirdars, adhlvasis and assamis These tenure-holders have been given certain rights and they are subject to certain liabilities created by U P. Z. A. & L. R. Act. All that Sections 199 and 200 of the U. P. Z. A. & L. R Act and other relevant provisions of that Act provide is that the bhumidhari and sirdari rights in a particular plot of land can only be extinguished in the manner provided therein. These provisions do not defeat the Land Acquisition Act which is a Special Act.
The word 'land' has been defined in the Act and the definition is comprehensive enough to include bhumidhari and sirdari land Apart from it Section 9 of the Act provides that notice shall be issued to all persons interested in the land including actual occupiers as distinguished from owners. Section 11 of the Act which deals with the making of the award provides that the amount of compensation fixed in respect of a particular plot shall be apportioned amongst the various classes of persons interested in the land. Section 12 of the Act provides that once an award is filed it shall be conclusive against the Collector on the one hand land the persons interested in the land on the other. An analysis of these provisions reveals that the Act contemplates acquisition not only of the rights of ownership in land but also of rights of occupation and cultivation--in fact all rights in respect of the land acquired, with the result that bhumidhari, sirdari, adhivasi and assami rights can also be acquired It is only for the purposes of land tenure and for the purposes of administration of the U. P Z. A. & L R Act that It Is provided that bhumidhar or sirdar shall be ejected only in conformity of Sections 199 and 200 of the U P Z. A & L. R. Act In the instant case the petitioners-respondents are not being ejected under the provisions of the U. P Zamindari Abolition and Land Reforms Act, In fact they are not being ejected at all. The pith and substance of the matter if that their bhumidhari and sirdari rights are being acquired after payment of full price to them in respect of those rights. There is a very clear difference between the exercise of the right of eminent domain by the sovereign authority and the right of ejectment on the ground either of non-payment of rent or for breach of the conditions on which land is held.
37. For the reasons mentioned above, aS al-ready said earlier, there is no substance in this submission of the learned counsel also. No other point has been urged before us not even the point relating to the alleged colourable exercise of power by the State Government for which there is no material
38. The Special Appeals are allowed, the Writ Petitions are dismissed and the order of Srivastava, J.. dated 29-1-1962 is set aside. In the circumstances of the case, however, the parties are directed to bear their own costs.