1. The question as to whether the High Court can issue injunctions and stay orders by way of interim relief in matters arising out of land acquisition proceedings has become important after the Forty Second Amendment to the Constitution particularly in the light of the language of Cl. (6) of Art. 226 which has been newly inserted by the Forty Second Amendment. Under that clause it has been provided, so far as it is relevant for the purpose of this case as follows :
'Notwithstanding anything in Cl. 94) or Cl. (5) no interim order (whether by way of injuction or stay or in any other manner) shall be made on, or in any proceedings relating to a petition under Cl. (1) where such order will have the effect of delaying ............. any action for execution of any work or project of public utility, or the acquisition of any property for such execution, by the Government or any corporation owned or controlled by the Government.'
Therefore, it is necessary to find out in each case when proceedings by way of land acquisition are challenged by presentation of a petition under Art. 226(1) of the Constitution, whether that particular acquisition is being made for a project or execution of any work or project of public utility, Art. 31(2) of the Constitution provides that no property shall be compulsorily acquired or requisitioned save for a public purpose. The rest of the provisions of Art. 31(2) are not material for the purpose of this order. It is clear that the Legislature knew what a public purpose means and yet when it enacted C.. (6) of Art. 226(1), it did not speak of acquisition for any public purpose and, indeed, under the Land Acquisition Act, in view of Article 31(2) of the Constitution, acquisition can only be for a public purpose; yet the Legislature has used the words 'public utility'.
2. The concept of public utility was evolved in the United States and it appears that the draftsmen who drafted the Forty Second Amendment have borrowed the words 'public utility' from the American law rather than from any other source. According to the Black's Law Dictionary 'public utility' means a business or service which is engaged in regularly supplying the public with some commodity or service which is public consequence (sic) and need, such as electricity, gas, water, transportation, or telephone or telegraph service. Any agency, instrumentality, business industry or service which is used or conducted in such manner as to affect the community at large, that is which is not limited or restricted to any particular class of the community. It is true as the learned Government Pleader, Mr. D. Venkatareddy has urged before us, in the context of public purpose, it has been held by the Supreme Court in State of Bombay v. Ali Gulshan, : 2SCR867 that the purpose of a section of the public is also a public purpose. However, the same analogy cannot be applied when we go to public utility, because the word 'public' rubs on to the word 'utility' and there is inter-action between the two words in the phrase 'public utility'. Public Utility means some service or work which is going to be used and which is going to be useful to all the members of the public irrespective of any distinction based n caste, colour or creed and further the work of public utility will be available to the general public as a whole even after the project is carried out. If a project is carried out for harijans or for backward classes only it is not going to be available to the members of the public nor the work of public utility will be available to the public in general. Therefore, every work of a public utility will be for a public purpose; however, 'public purpose' is not covered by 'public utility' public purpose is to be under stood in the light of the definitions given by the Supreme Court and other Courts ever since the enactment of the Constitution. Under these circumstances, we must hold that when the Legislature by enacting the Forty Second Amendment and inserting Cl. (6) of Art. 226(1), used the words 'execution of any work or project of public utility, or the acquisition of any property for such execution', it had a narrower meaning in mind than the words 'public purpose'. Therefor, in each case when there is a challenge to the land acquisition proceedings, the court has to examine whether the acquisition of the property which has been challenged is for execution of a work or project for public utility. Project for public utility would merely mean agglomeration of works, Each individual work would be covered by public utility. Public utility means some work or service like telephone, telegraph, railways etc. whatever it may be, which is available to the public at large and not merely to a section of the community. If this test is borne in mind, then it is obvious that in majority of the cases in which acquisition is being challenged, interim stay orders can still be granted even after the enactment of Art. 226(1) of the Constitution. All that the Court has to ask itself is whether public as a whole that is any member of the public irrespective of caste, colour and creed, may be that he is a member of scheduled caste or a higher class, a member of backward community or not so backward, will be able to use this service. If the answer is in the affirmative i.e. in favour of the use by a member of the public as a whole irrespective of caste or creed in whatever manner it is to be used, it will be a public utility. If the acquisition is for such a public utility then only the ban contemplated by Art. 226(1) of the Constitution will come into operation.
3. We have delivered this order so as to clarify the legal position regarding this aspect of law.
4. Order accordingly.