N.M. Miabhoy, C.J.
1. These sixteen petitions arise from a single set of notifications, published by the State of Gujarat under Sections 4 and 6 of the Land Acquisition Act (hereafter called the Act). Though, petitioners are different, respondents in all the petitions are common. Therefore, with the consent of both the sides, the petitions were set down for hearing together and a common argument was heard in respect of all the petitions. This judgment will dispose of all the sixteen petitions.
2. Petitioners are owners of their respective lands situated in the village Ranoli, Taluka Baroda, District Baroda. There are three respondents in each of the petitions. One of the respondents is the State of Gujarat (hereafter called the State), which purports to exercise the power of the eminent domain. One D. P. Dave is another respondent. He has been joined in his capacity as the Special Land Acquisition Officer No. 2, Baroda. Though he occupied this position on the date of the filing of the petitions, from the record it appears that, one Dalsukhdas Karsundas Master, who has filed an affidavit on behalf of respondents on 26th of August 1966, was at all relevant times the Special Land Acquisition Officer posted at Baroda, who took all the steps before and after the commencement of the impugned acquisition proceedings. Suhrid Geigy Ltd., a company registered under the Indian Companies Act (hereafter called the company slmpliciter), is the remaining respondent in all the petitions. This company owns about 140 acres of land in the village Ranoli. Petitioners also own lands measuring about 45 acres in the same village, and the lands of petitioners form enclaves in the lands of the company. Petitioners' lands were notified for acquisition by the State first on 22nd of July 1961 for acquisition under Section 4 of the Act. The public purpose mentioned in the notification was the public purpose of the State for the establishment of a fertilizer factory. This notification was, however, withdrawn by the State on 11th September 1952, on the ground that the lands were not suitable for the establishment of a fertilizer factory. However, on the very next day i. e., on 12th September 1962, the State issued another notification under Section 4 for the acquisition of the same lands, this time for the company. Petitioner in Special Civil Application No. 1475 of 1965 filed a writ petition No. 1035 of 1962, challenging this notification, and petitioners in Special Civil Applications Nos. 1479/65 and 1480/65 and Nos. 119 to 125 of 1966 filed a joint petition No. 977 of 1962, challenging the above notification. However, during the pendency of the above two notifications, the first Arora's case, I since reported in : AIR1962SC764 , was decided by their Lordships of the Supreme Court. As the above notification was affected by that case, the proposed acquisition became infructuous. However, I whilst those two petitions were still pending, an Ordinance was published by the President, introducing certain amendments in the Act which were primarily designed to get over the effect of the first Arora's case. This Ordinance was followed by the Acquisition Amendment Act XXXI of 1962 which came into operation retrospectively from 20th July 1962, which had also introduced the same amendments to the Act as the Ordinance did. The Central Government, by virtue of the power conferred upon it by the newly added proviso to Section 55, published rules called the Land Acquisition (Companies) Rules, 1963 (hereafter called the company rules), which became effective from 22nd June 1963. Thereafter, on 24th July 1963, the State withdrew the notification dated 12th September 1962, which was impugned by some of petitioners under the aforesaid two petitions. Consequently, the above petitioners withdrew those two petitions. However thereafter Mr. Master, the Special Land Acquisition Officer, held an enquiry under Rule 4 of the company rules, the details of which it will be necessary for us to mention in a later part of this judgment. After the enquiry was over, the State published a fresh and a third notification, dated 28th August 1964 under Section 4 of the Act, for acquiring petitioners' lands for the company, and appointed Mr. Master to perform the duties of the Collector under Section 5A of the Act. Petitioners filed their objections. Those objections were, however, overruled by the State and a notification, dated 18th October 1965, under Section 6, was published by the State Government for acquiring the above lands. The purpose which is mentioned in both the notifications aforesaid is mentioned as follows:
For the purpose of Suhrid Geigy Ltd., namely, for establishment of factory for that company which is taking steps for engaging itself for manufacture of Ontical Bleaching Agents, Intermediate Dye Stuffs, etc., which is for the public purpose.
It is these two notifications dated 28th August 1964 and 18th October 1965, which are challenged by petitioners in these sixteen petitions. Petitioners pray that a writ of certiorari or any other appropriate writ or order, cancelling or quashing the impugned notifications, may be issued by this Court. Petitioners also pray that this Court may issue a writ or a direction or an order appropriate to the occasion and situation for safeguarding the fundamental rights of petitioners and more particularly those guaranteed by Articles 13 and 31 of the Constitution. All the petitions are filed under Article 226 of the Constitution. Petitioners have filed affidavits in support of their petitions. One A.J. Sheth, Commercial Manager of the company, has filed an affidavit in reply on 10th January 1966. Petitioners have filed an affidavit in rejoinder on 4th July 1966. One A.S. Gill, Secretary to the Government of Gujarat, Revenue Department, has filed an affidavit dated 12th July 1966, on behalf of the State. Petitioners filed an affidavit in rejoinder to this affidavit on 26th July 1966. Petitioners have filed a further affidavit in rejoinder on 26th July 1966. A.J. Sheth has filed an affidavit in sur-rejoinder on 7th April 1966 and a further affidavit in sur-rejoinder on 9th August 1966. The petitions came up for hearing on 22nd August 1966. During the course of that hearing, as a result of an argument to be presently mentioned advanced by Mr. M.C. Shah, the notification dated 11th October 1963 issued by the State under Section 3(c) of the Act was produced. As a result of the production of the notification, Mr. Majmudar, Learned Counsel for petitioners in Special Civil Applications Nos. 194 to 197 of 1966, advanced an argument on the basis of some dates, which would be mentioned later on, which was likely to affect the validity of the acquisition proceedings. Therefore, on 24th August 1966, the hearing of the petitions was adjourned to another date to enable respondents to file a further affidavit and to produce further documents. Accordingly, on 25th August 1966, Dalsukhdas Karsandas Master filed a further affidavit producing some documents. The petitions were taken up for further hearing on 26th August 1966, and the hearing was finally concluded on 31st August 1966. We have mentioned this history of the filing of affidavits in detail, because, we found in the course of the hearing that, the central point which came to be made out by Mr. M. C. Shah, who led the arguments on behalf of petitioners, was one which was not found to have been taken in all the petitions except one and that, even that central point came to be modified after the affidavit of Mr. Master was filed, so that, the central point which emerges for determination in the present case came to be formulated and discussed only on 26th August 1966. As a result of the above development, a number of points which were brought into prominence on the first sub mission, hereafter to be mentioned, became infructuous.
3. Mr. M. C. Shah had first formulated the following seven points for our decision. But, as we shall presently point out, though the first submission was widely formulated, he restricted it to two narrow grounds and gave up the fourth and the sixth submission altogether and reformulated the seventh submission, giving up a substantial portion thereof. We shall indicate the clarification and the changes in the respective submissions at the proper places. The submissions were as follows:
(1) the State and the Special Land Acquisition Officer did not follow the procedure prescribed under the company rules;
(2) the purpose which is mentioned in the two impugned notifications is not a public purpose within the meaning of Section 40, Sub-section (1), Clause (aa) of the Act;
(3) the State Government has used its power mala fide and in colourable exercise thereof;
(4) the procedure prescribed by Part VII has not been followed;
(5) the State has not applied its mind to the facts of the present case;
(6) Section 5A is ultra vires Article 14 and Article 19(1)(f) of the Constitution; and
(7) even though the enquiry under Section 5A is quasi Judicial, no opportunity was given to petitioners by the State to be heard. Therefore, the proceedings under Section 5A, being violative of the principles of natural justice, were void.
4. The first submission was, as already indicated, restricted only to two points to be presently indicated. The fourth and the sixth submissions were altogether given up. The seventh submission was, however, remodelled. The contention therein that an enquiry under Section 5A was quasi judicial was given up. It was conceded that, an enquiry under Section 5A is administrative in nature. But, the submission was remodelled to contend that, even though the enquiry was administrative in nature, in law, petitioners were entitled to be heard by the State before the impugned notification under Section 6 was issued and that, in the absence of any such hearings, the notifications under Sections 4 and 6 were void.
5. We propose to take up the first submission for consideration first. In the rest of this judgment, unless otherwise indicated, we propose to refer to the record of Special Civil Application No. 1475 of 1965. Therefore, if the term 'petitioner' is used hereafter it will mean petitioner of that petition. In paragraph 12 of that petition, petitioner has taken four specific grounds. They are (1) that the company rules were not followed, (2) that, no opportunity was given to petitioner of being heard and represented before the Land Acquisition Committee, (3) that, the latter committee was not constituted before the notification under Section 4 was issued, and (4) that, respondent No. 1 had not followed the procedure laid down in Rule 4 of the company rules. The third ground was specifically given up by Learned Counsel for all the petitioners. They concede that, the Land Acquisition Committee was constituted before the notification under Section 4 was published. The grounds which survive are the other three. The first ground is too general and vague and does not give any idea as to which particular rule or rules of the company rules were violated. At the time of the arguments, however, Learned Counsel for petitioners did not press the first ground in the wide form in which it was mentioned in paragraph 12 aforesaid. They pressed into service only the fourth ground, namely, that, the procedure laid down in Rule 4 had not been followed. They also pressed the second ground that, petitioners were not given an opportunity to be heard by the Land Acquisition Committee. Respondents admit that, no such opportunity was given by that Committee. However, their contention is that, neither the rules nor any other principle of law requires that petitioners should have been given any such opportunity. Therefore, at the time of the hearing, the arguments were confined only to two points, first that, breaches of Rule 4 and a principle of natural justice, were committed. Even the contention that Rule 4 is broken is vague and, when asked to be specific, Mr. M. C. Shah, ultimately on 26 of August 1966, formulated the point thus: Rule 4 requires the Government to direct the Collector to make his report on certain points and the rule enjoins on him to hold an enquiry in regard to certain matters and yet no direction was issued to the Collector by the State and that, whatever enquiry was held, was held not by the Collector but by the Special Land Acquisition Officer. Mr. Shah contends that Master, the Special Land Acquisition Officer at the relevant time had no authority to make a report or to hold an enquiry as required by Rule 4. Therefore, in the ultimate analysis, the contention which emerged was, whether, Master, as the Special Land Acquisition Officer, had or had not authority to make a report or to hold an enquiry as required by Rule 4. It is this contention of Learned Counsel for petitioners which requires an examination at our hands. The second contention on the first submission, which requires examination, is, whether, petitioners were or were not entitled to have an opportunity of being heard before the Land Acquisition Committee.
6. Before we discuss the above two parts of the first contention, it is necessary for us to narrate a few facts which came on our record in the affidavit of Master, and to read a few sections of the Act and a few rules.
7. It appears from the affidavit of Master that, he was working as the Special Land Acquisition Officer at Baroda from 6th December 1961 to 29th April 1965. The notifications appointing Master as the Special Land Acquisition Officer at Baroda prior to 11th February 1963 are not on our record. The learned Advocate General stated to us that there Were such notifications but that, they were not brought on the record on account of the shortness of time at the disposal of respondents to make the affidavit of Master. But, from the various exhibits attached to the affidavit of Master, the following position emerges as obtaining from 11th February 1963. On the latter date, Master was appointed to officiate as the Special Land Acquisition Officer, Baroda. On 1st October 1963, the Government wrote the letter, Exhibit II, to Master, forwarding to him the application, dated 11th September 1963 received from the company, and requested him to make enquiries in the light of the company rules and to submit his report in duplicate to Government. The same letter also gave some further instructions to Master in regard to the proposed acquisition by the company. The letter also stated that, Mr. Master was being authorised separately to perform the functions of a Collector under the Act and that, on such authorisation, Mr. Master would be competent to undertake to make enquiries under the company rules. On the same day, that is, 1st October 1963, the State published a notification in the exercise of the power conferred upon it by Clause (c) of Section 3 of the Act, appointing Mr. Master to perform the functions of a Collector under the Act within the revenue district of Baroda. However, on 11th October 1963, the Government issued a second notification in exercise of the same power under Clause (c) of Section 3. This notification has become now the main target of attack by petitioners. The fate of the first point ultimately raised by Learned Counsel for petitioners depends in the final analysis on the true construction of this notification. Under this notification, the Government firstly superseded the two earlier notifications, one of them being the notification dated 1st October 1963, by which Mr. Master was appointed to perform the functions of the Collector under the Act. After superseding the two previous notifications, the notification dated 11th October 1963 proceeded to state as under:
The Government of Gujarat hereby authorizes all Special Land Acquisition Officers in the State of Gujarat to perform functions of the Collector under the said Act within the area of their respective jurisdiction.
Before the issue of the above notification, Master, on 10th October 1963, had addressed a letter to the company, calling upon it to supply him with certain information relevant to an enquiry under Rule 4. Then, Master issued notices on 22nd October 1963 to the land-owners whose lands were proposed to be acquired. On 31st of October 1963, out of the 27 landholders to whom notices were issued, only ten remained present and their statements were recorded by Master. Sixteen out of these twenty-seven landholders are petitioners in this Court. The rest of the landholders, including nine petitioners, did not remain present to give their statements to Master.
8. Rule 4 is framed to enable the appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings. It says that, whenever a company makes an application to the appropriate Government for acquisition of any land, the Government shall direct the Collector to submit a report to it on the matters mentioned in Clauses (i) to (vi) of Sub-rule (1). Broadly speaking, the report is to be made on such questions as to whether the company concerned had or had not made its best endeavours to find out lands in the localities suitable for the purpose of acquisition; that the company had made all reasonable efforts to get such land by negotiations with the landholders on payment of reasonable price; that though such efforts were made, they had failed; that the land proposed to be acquired was suitable for the purpose and was not excessive; that the company was in a position to utilize the land expeditiously, and that, where the land proposed to be acquired was good agricultural land, no alternative suitable site could be found so as to avoid acquisition. Sub-rule (2) enjoins the Collector to hold an enquiry in regard to matters referred to in Sub-rule (1) and further enjoins him to enquire into certain other matters mentioned in Clauses (i) to (ii) of Sub-rule (2). This enquiry is directed to be made by the Collector after giving the company a reasonable opportunity to make any representation in that behalf. That sub-rule enjoins the Collector to consult the Senior Agricultural Officer of the district whether the land proposed to be acquired is good agricultural land, if the land so proposed happens to be agricultural land; to determine the approximate amount of compensation likely to be payable for the proposed acquisition and to ascertain whether the price offered by the company to the landholders was reasonable Sub-rule (3) enjoins the Collector to submit a report to the appropriate Government. The same sub-rule also enjoins the Government to forward a copy of that report to the Land Acquisition Committee. Sub-rule (5) of Rule 2 casts a duty on that Committee to advise the appropriate Government on all matters relating to or arising out of acquisition of land under Part VII of the Act and to tender its advice within one month from the date on which it is consulted. Sub-rule (4) of Rule 4 prohibits the appropriate Government from making a declaration under Section 6, unless it has consulted the Committee and considered the report submitted by the Collector and the report, if any, submitted under Section 5A of the Act and unless an agreement under Section 41 has been executed by the Government.
9. Now, the contention of Learned Counsel for petitioners is that, the effect of Rule 4 is to prohibit the Government from acquiring land without, amongst others, considering the report of the Collector under Rule 4. They submit that, on the facts which have been brought out in the affidavit of Master, it is quite clear that, the Collector of Baroda District has not made any report, but it is Master who has done so. The contention is that, therefore, the enquiry and the report which was made under Rule 4 were by an unauthorised person and, that being so, the notifications under Sections 4 and 6 both were void and must be quashed. The reply of respondents is that, Master was a Collector within the meaning of Rule 4 at the relevant time and, therefore, the enquiry and the report made by him are sufficient compliance of the provisions contained in Rule 4. Respondents rely upon the definition of the word 'Collector' given in Clause (c) of Section 3. That definition is as follows:
In this Act, unless there is something repugnant in the subject or context:(c) the expression 'Collector' means the Collector of a district, includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act.
Respondents' contention is that, Master, though not the Collector of a district, was an officer specially appointed by the State to perform the functions of a Collector under the Act and, therefore, he had all the powers and was charged with all the duties of a Collector as laid down in Rule 4. Mr. M. C. Shah repels the above contention of respondents in two ways. Firstly, he contends that, the term 'Collector' as used in Rule 4 means the Collector of a district and does not take within its purview an officer appointed to perform the functions of a Collector under Clause (c) of Section 5. Secondly, he contends that, even if Clause (c) of Section 3 is attracted to Rule 4, in fact, Master was not legally and validly appointed to perform the functions of a Collector under the Act. According to Mr. Shah, this is because, Master was not specially appointed. His contention is that, the latest notification dated 11th October 1964, on which reliance is being placed, does not appoint Mr. Master specially, but is a general notification which authorizes not only Master but all Special Land Acquisition Officers appointed on or before the date of the notification and to be appointed in future, to be Collectors under the Act. Mr. Shah's contention is that, the notification being general, is invalid and is insufficient to confer powers of the Collector on Master or any of the other Land Acquisition Officers referred to in the aforesaid notification.
10. Before we deal with the rival contentions, we may record a complaint which was made by the learned Advocate General, and in our judgment, with some justification, that, having regard to the fact that, the central contention regarding lack of authority of Master came to be raised at the eleventh hour, respondents have had no time or opportunity to delve into the past and bring forth all the relevant notifications and to divulge the system which the State Government had devised to empower its officers with the functions of the Collector under Clause (c) of Section 3. Except in one petition, not only the lack of authority of the Land Acquisition Officer has not been made a ground, but the objections are raised on the existence of such authority. Of course, from those petitions, it appears that, petitioners were not aware of the fact that respondent No. 2 was not the Land Acquisition Officer at the relevant time. But, even if one proceeds on the basis that, respondent No. 2 has been mistaken by petitioners for Master, the objections do not leave any doubt that the gravamen was not that the Land Acquisition Officer lacked authority, but, the gravamen was that that officer had not followed the company rules. For example, in grounds (J), (L) and (M) in paragraph 21, the averments are that, respondent No. 2 had not followed the company rules, specially rule No. 4, and not held the enquiry as required by Sub-rule (1) of Rule 4. It is only in one petition that it has been alleged that, respondent No. 2 had no authority to hold the enquiry and to make a report under Rule 4. From the record of the case, it appeared that, the Land Acquisition Officer had given a notice to petitioner of that case on 23rd September 1963 and that, the statement of that petitioner was recorded on 30th of September 1963. It was, at that stage, admitted on behalf of respondents that, similar notices were issued to other petitioners also on 23rd September 1963 and they were called upon to give their statements on 30th of September 1963. In view of the fact that, the company rules came into operation only on 22nd June 1963, we called upon respondents to satisfy us, at an early stage of this hearing, that, respondent No. 2, who, at that time, was assumed to have been the Special Land Acquisition Officer, was conferred powers of the Collector under Rule 4. The learned Advocate General, at that stage, produced the notification dated 11th October 1963. As soon as this notification was produced, Mr. M. C. Shah, who was then arguing raised the question that, in any case, there could not have been any valid enquiry and report under Rule 4, because, respondent No. 2 had made the enquiry at least eleven days before the date on which he was conferred the powers of a Collector which would enable respondent No 2 to hold an enquiry under Rule 4. This aspect of the matter relegated to the background the other points which had been raised earlier and went to the root of the matter. Therefore, the learned Advocate General very rightly asked for an adjournment in order that the matter might be properly looked into and all the facts relevant on the subject might be brought on the record of the cases. The result was the affidavit of Master which brought out the facts which we have already set out above. The learned Advocate General says that, though he has no objection to petitioners being allowed to raise all proper submissions arising out of the affidavit of Master on the question of the authority of Master to exercise the powers of a Collector under Clause (c) of Section 3, he will be prejudiced if any more points are allowed to be raised on the basis of the materials brought out in the affidavit of Master. Mr. M. C. Shah, for example, raised the contention that, though Master was authourised to perform the functions of a Collector under Clause (c) of Section 3, he was not directed, as required by Rule 4, by the Government to make a report under that rule. The learned Advocate General rightly contended then that, this additional point should not be allowed to be raised. But, however, as one of the documents produced by Master itself negatived the aforesaid contention, the learned Advocate General did not pursue the matter any further.
11. That brings us to the contentions of the parties on the first submission. The first contention of Mr. M. C. Shah is that, the term 'Collector' used in Rule 4 can only mean the Collector of a district, and does not take within its purview the officers specially appointed under Clause (c) of Section 3. Mr. Shah contends that, the term 'Collector' has not been defined in the company rules. Those rules do not say that, the term 'Collector' has been used in the same sense as it is defined in the Act. He especially relies upon the absence of any provision in the Act or the rules similar to the one contained in Section 127 of the Civil Procedure Code and Section 455, Sub-section (2), of the Bombay Provincial Municipal Corporations Act, 1949. Section 127 enacts that the rules made thereunder shall have the same force and effect as if they have been contained in the First Schedule of the Civil Procedure Code. Sub-section (2) of Section 455 enacts that, all rules made under Section 454 of the Bombay Provincial Municipal Corporations Act, shall have effect as if enacted in the Act. Therefore, Mr. Shah's contention is that, in order that the definition in Clause (c) of Section 3 may be applied in the construction of the rules, there should be some such similar provision in the parent enactment or, in the absence thereof, there should be some provision in the rules themselves which would fulfil the above condition. In our judgment, there is no merit in this submission. In our judgment, Section 20 of the General Clauses Act provides the clearest answer to Mr. Shah's contention. That section provides that, where, by any Central Act, a power to make among others, a rule, is conferred, then the expressions used in such a rule, if it is made after the commencement of the General Clauses Act, shall, unless there is anything repugnant in the subject or context, have the same meaning as in the Central Act conferring the power to make the rule. The company rules, having been made after the enactment of the General Clauses Act, it cannot be disputed that, Section 20 applies to those rules. Therefore, unless there is anything repugnant in the subject or context, the above expression used in the rules, must have the same meaning which the parent Act has for that expression. Therefore, the proper enquiry in the case is whether there is anything repugnant in the subject or context which excludes the application of the rule enunciated in Section 20 of the General Clauses Act. Mr. Shah contends that, the language of the definition in Clause (c) of Section 3 excludes the application of the definition, contained therein, to the rules. He says that, the definition says that, the Collector means any officer specially appointed to perform the functions of a Collector under the Act. Therefore, his contention is that, the very definition implies that the only functions which can be entrusted to an officer under the aforesaid clause are the functions under the Act and not under the rules. He contends that by the use of the expression under the Act the functions under the rules are excluded by the definition itself. In our judgment, there is no merit in this contention also. In appreciating the above contention, we must bear in mind that, Clause (c) aforesaid is a defining clause. In other words, the effect of that clause is that the whole definition is to be substituted wherever the word 'Collector' occurs in the Act or the rules. It is obvious that, that being so, when reading the company rules, what is required to be done is to substitute the above definition for the word 'Collector' wherever it happens to be used in the Company rules. Approaching the problem thus, we have not the slightest doubt that, the word 'Collector', as used in the rules, will have the same meaning as the word 'Collector' as defined in Clause (c) aforesaid.
12. The second contention of Mr. M. C. Shah is that, in any case, the appointment of Master is bad, because, the appointment does not comply with Clause (c) of Section 3 of the Act. Now, in order to understand this contention, it is necessary to repeat the following facts. By the notification dated 11th February 1963, Master was appointed 'to officiate as Special Land Acquisition Officer, Baroda, vice Shri V.K. Parmar Transferred. ' By the notification dated 1st October 1963, Master was appointed 'to perform functions of the Collector under the said Act within the revenue district of Baroda.' This notification was superseded by the last notification dated 11th October 1963, by which, the Government authorised 'all Special Land Acquisition Officers in the State of Gujarat to perform functions of the Collector under the said Act within the area of their respective jurisdiction. ' According to respondents, Master derived his authority to act under the company rules by virtue of the latest notification dated 11th October 1963. Mr. Shah's contention is that, that notification is bad, because, it does not appoint Master a Collector specially, but, appoints him generally along with all other Special Land Acquisition Officers in the State. Mr. Shah's contention is that, in order that an appointment under Clause (c) of Section 3 of the Act may be valid, a general appointment is not enough. The appointment must be special. It is this argument which requires examination at our hands. In the first instance, Mr. Shah relies upon the case of Major S. Arjan Singh and Anr. v. The State of Punjab and Ors. reported in , as a preliminary step in support of his contention. In that case, the relevant notification stated that, an officer was appointed as 'officiating 'Land Acquisition Officer' but it did not state that he was so appointed to perform the functions of the Collector under the Act. Bishan Narain J. held that, the notification was bad as the officer concerned was never appointed to perform the functions of a Collector under the Land Acquisition Act, In our judgment, it is not necessary to decide whether this case lays down the correct law. The question decided therein does not directly arise for our decision in the present case. The submission which Mr. Shah makes is not that, the first notification dated 11th February 1963, is bad. In fact, Mr. Shah is not directly concerned with the validity of that notification at all. It is a moot point as to whether, a notification appointing an officer as a Special Land Acquisition Officer without stating that he was appointed to perform the functions of a Collector, under the Act, is ineffective or not. The question can only be properly examined after the system devised by the State Government for appointment of officers to perform the functions of a Collector is known and all the relevant facts bearing on such a system have been brought on the record. Therefore, we do not propose to express any opinion as to whether, by the aforesaid notification, Master did or did not acquire the powers of a Collector under the Act. The second notification dated 1st October 1963, however, in terms appointed the Special Land Acquisition Officer, Baroda, that is, Master, to perform the functions of a Collector under the Act. Mr. Shah does not dispute that, this notification is a special appointment of Master. Mr. Shah concedes that, as and when the notification dated 1st October 1963 was issued, Master was invested with the functions of a Collector under the Act. But, Mr. Shah contends that, this notification is of no avail to respondents, because, it was superseded by the notification dated 1lth October 1963. He contends that that notification being bad for the reason indicated is of no avail to respondents.
13. The above contention raises, first, the question of the construction of Clause (c) of Section 3 of the Act. Firstly, the clause says that, the 'Collector' means the Collector of a district. Secondly, it says that, 'Collector' includes a Deputy Commissioner. We are not concerned with these two parts of the definition. Thirdly, the clause states that, 'Collector' includes any officer specially appointed to perform the functions of a Collector under the Act. Therefore, it is clear that, in order that a person may be entrusted with the functions of a Collector, he must be, firstly, an officer; secondly, he must be appointed to perform the functions of a Collector under the Act, and thirdly, he must be so specially appointed. There is no dispute that, Master was, at the relevant time, an officer of the Government and, therefore, competent to be entrusted with the functions of a Collector under the Act. Mr. Shah, however, contends that, by the notification, dated 1lth October 1963, Master was not appointed to perform the functions of a Collector. He contends that notification only authorised the Special Land Acquisition Officers in the State to perform the functions of Collectors. In this connection, Mr. Shah points out that, in the earlier notification, the word 'appointed' is used, whereas in the later notification, the word 'authorised' is used. However, in our judgment, the word 'appointed' in Clause (c) is not used in the sense of an appointment to a past. The above part of the definition is not intended to allow the Govt. to create any post. This follows from the two factors indicated in the definition itself. The first is that, the person to be entrusted with the functions of a Collector must be an officer, and secondly, the definition does not use the word 'appointed' simpliciter, but, uses the expression 'appointed to perform functions of a Collector. ' Therefore, the idea, when making an appointment under Clause (c), is not to appoint a person to any post, but the idea is to appoint an officer to perform the functions of a Collector, that is, to authorise him to perform such functions. Therefore, in our judgment, the mere fact that the aforesaid notification uses the word 'authorised' instead of 'appointed' does not vitiate it. But, contends Mr. Shah, that, even if this be so, in order that the appointment may be valid, it must be a special appointment and not a general appointment. Mr. Nanavati contends that, the adverb 'specially' does not go with the word 'appointed', but goes with the latter part and is intended to emphasize that the functions which the officer concerned is called upon to perform are the special functions of a Collector under the Act and not the general functions of the Collector. We are unable to agree with this refinement. In our judgment, such a transposition of the word 'specially' would be ungrammatically. There is not the slightest doubt in our mind that, the adverb 'specially' qualified the verb 'appointed' and the idea is that the appointment must be special in the sense that the officer concerned must be specially or distinctly selected. The word 'specially' in the context appears to have been used in contradistinction to 'generally. ' But, in our judgment, the question as to whether, an appointment in a particular case is special or general must depend upon the facts of each case, and the construction of the notification or notifications concerned. If the construction of the latter leads to the conclusion that the appointment is general, that is, that it is not distinctive, then, the appointment will be bad. Now, in this view of the matter, it is necessary to refer back to the two notifications, the first dated 11th February 1963 and the second dated 11th October 1963. The learned Advocate General's contention is that, the effect of the two notifications together is to appoint Master specially to perform the functions of a Collector. In this connection, the learned Advocate General first relies upon Section 15 of the General Clauses Act. That section enacts that, where, by any Central Act a power to appoint any person to execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment may be made either by name or by virtue of office. Therefore, contends the learned Advocate General, that, the fact that, in the latter notification, authority has been conferred on the Special Land Acquisition Officers by virtue of their office does not invalidate the appointment of Master. Secondly, the learned Advocate General contends that, when Master was appointed as the Special Land Acquisition Officer by the notification dated 11th February 1963, Master was appointed by name and, according to the learned Advocate General, that appointment was a special one. He contends that, it is obvious that Master was appointed eo nomine. The learned Advocate General contends that, the source of the authority of Master is not to be found in the latter notification at all, but, it is to be found by reading both the notifications together. The learned Advocate General contends that, a consistent and proper reading of the two notifications will be that, whereas, Master, who was already an officer of the Government, was specially designated as the Special Land Acquisition Officer, by the latter notification he was confer-red the power to perform the functions of a Collector. The learned Advocate General contends that, the latter notification does not confer powers on all Land Acquisition Officers in a general way. The true construction of that notification in his submission, is that, each of the Special Land Acquisition Officers, then existing in the State or to be appointed there-after, would, when specially appointed as a Special Land Acquisition Officer, have the powers of the Collector under the Act. Therefore, according to the learned Advocate General, the scheme which emerges from the latter notification is this, that, the Government has, on 11th of October 1963, made up its mind that all Special Land Acquisition Officers, then existing or thereafter to be appointed, would have the power to perform the functions of a Collector. But, in regard to the Special Land Acquisition Officers already in existence, each one of them was already specially appointed; and in regard to future Special Land Acquisition Officers also, each would be specially appointed when he is designated as a Special Land Acquisition Officer. Therefore, according to the learned Advocate General, a conjoint reading of the two notifications leads to the result that Master was specially appointed to perform the functions of a Collector. Mr. Shah's contention is that, the mere appointment as a Special Land Acquisition Officer, even though it may be special, does not lead to a special appointment to perform the functions of a Collector. He contends that, the speciality must attach to the appointment at the time when the power to perform the functions of a Collector is conferred. In support of his contention, Mr. Shah relies upon the case of Emperor v. Savalaram Kashinath Joshi and Ors. reported in A.I.R. 1948 Bom. page 156. In that case, their Lordships were considering the validity of a notification dated 23rd August 1928, by which Assistant Superintendents and Deputy Superintendents of Police at six specified places were empowered to issue warrants under Section 6 of the Bombay Prevention of Gambling Act by virtue of their office. At the time when this notification was issued, Section 6 only required that, the person concerned should be empowered to issue warrants. But, at the time when the warrant was actually issued by one Crone, the section had been amended so as to read 'specially empowered' in place of word 'empowered. ' In that case, their Lordships held that, the Government could appoint any Assistant or Deputy Superintendent of Police to exercise the functions of issuing a warrant under Section 6 of the Bombay Prevention of Gambling Act, not only by name but also by virtue of their office, but that, when a class of officers is invested with powers to try certain offences or to perform certain functions, they are generally empowered. It was further held, however, that, if any such persons are so empowered by name or by virtue of their offices, they are said to be specially empowered. Mr. Shah's contention is that, this case is an authority for the proposition that, when power is conferred upon a class of officers, as contradistinguished from officers by name or by virtue of their office, then, it is a general conferment of power and, therefore, bad. In our judgment, the case is distinguishable on the facts of the present case. In that case, the above construction was put on the expression 'specially empowered' by virtue of the provisions contained in Sub-section (1) of Section 39 of the Criminal Procedure Code. There is no corresponding section in the Act,
14. On the whole, we have come to the conclusion that, the proper way to deal with the case is to read the two notifications conjointly. In our judgment, the second notification does not confer power upon a class of officers. In our judgment, if that notification is properly read, in effect, it confers powers upon a Special Land Acquisition Officer within the respective area of his jurisdiction. Therefore, in our judgment, the learned Advocate General is right in his contention that, though the words used are general, the effect is that each member of the class of the Special Land Acquisition Officers is appointed to exercise the functions. In this connection, the following passage from Stroud's Judicial Dictionary, Third Edition, Volume I, at page 166, is instructive:
Appointed. (1) When a statute declares that a class of persons shall exercise a certain function e. g. shall be Improvement Commissioners each member of that class is 'appointed' to exercise the function (Nicholson v. Fields 31 L. J. Ex. 233),
In our judgment, reading the two notifications together, the scheme followed by the State appears to be as follows: Officers of the Government are first appointed as Special Land Acquisition Officers. The Government has taken a decision in advance that, whenever any person is so appointed, he shall perform the functions of a Collector under the Act. Therefore, every time an officer is selected and appointed as a Special Land Acquisition Officer, automatically by virtue of the aforesaid notification, he derives power of the Collector under the Act. Under such circumstances, we are not prepared to say that, the appointment or authorization of the Special Land Acquisition Officers would be general and not special. The two steps, when combined together, would make the appointment, in our judgment, special. In the case of Master, in our judgment, there is not the slightest doubt that, when he was appointed as the Special Land Acquisition Officer on 11th February 1963, he was specially selected for the purpose and as and when the latter notification was issued, by reason of the combined effect of that notification and the earlier one, he became appointed to perform the functions of the Collector and, having regard to the fact that, earlier he was appointed by name to the post of the Special Land Acquisition Officer, his appointment was special and not general. In that view of the matter, in our judgment, the first part of the submission of Mr. Shah must be rejected.
15. Before we part with the first part of the first submission, we may mention that, Mr. Shah further contends that, Master's affidavit does not clearly bring out that he had made a report to the Government, as required by Rule 4, after the company's application was referred to him. We did not permit Mr. M. C. Shah to raise this point. It was quite obvious that, the point would be a totally new point which would not arise from the pleadings and of which respondents will have no notice, so that, respondents could not have taken steps to bring proper materials on the record. As already stated by us, the only point which was urged at an earlier stage was about the authority of the Land Acquisition Officer to conduct an enquiry under the rules. Another point, which Mr. Shah raises, is that, in any case, though Master may have been authorised to perform the functions of the Collector, there was no direction received by him from the Government to make a report under Rule 4. This contention is based on the language of Sub-rule (1) of Rule 4 itself. That sub-rule requires that, the Government should direct the Collector concerned to submit a report to it on the points mentioned in that sub-rule. However, in our judgment, Mr. M. C. Shah is not factually right in contending that the Government had not directed Master to submit a report to it. In the letter, dated 1st October 1963, the Government, after referring to the company's application, dated 11th September 1963; distinctly requested Master to make enquiries in that matter in the light of the company rules and to submit his report in duplicate to the Government. Mr. M. C. Shah, however, alternatively argues that, the report, if any, made by Master will be bad, as in the earlier communication dated 2nd August 1963, when Master was not given the powers of a Collector, the report was asked for by the Government frond the Collector of Baroda District and Master was only expected to help the Collector in making the enquiry under Rule 4. Mr. M. C. Shah is right in stating that this was the position on 2nd August 1963. But, in advancing the aforesaid argument, Mr. M. C. Shah totally ignores the later developments, and those developments were that, apparently, the proceedings which were started by Master with his notice dated 23rd of September 1963, were abrogated altogether when the notification dated 1st October 1963 was issued in his favour. In fact, the Government, in its aforesaid letter dated 1st October 1963 stated in specific terms that a notification of the same date was being separately issued in order to enable Master to make enquiries under the company rules. As already stated by us, the latter notice was issued in fact by Master on 22nd October 1963 and the statements of some of the parties recorded on 31st Oct., 1963. In the face of the aforesaid facts, in our judgment, there is no substance whatsoever in the aforesaid factual contention of Mr. M. C. Shah.
16. In view of the developments which took place during the course of the hearing and which we have narrated above, some of the contentions earlier raised by Mr. M. C. Shah are no longer of any importance. For example, Mr. M. C. Shah's contention at an early stage was that, the enquiry and the report under Rule 4 must precede the notification under Section 4. We express no opinion on the validity of this contention. It is not necessary for us to decide this point, because, from the facts already narrated, it is a fact that, in the present case, the enquiry and the report by Master were made before the notification under Section 4 was issued. The second point which Mr. Shah had raised at the earlier stage was that, the enquiry under Rule 4 was a quasi-judicial enquiry, at which, not only the company, but also the landholders were entitled to be heard. We express no opinion on this aspect of the matter also, because, from the facts already narrated, it is a fact that the landholders were given an opportunity to be heard before the notifications under Sections 4 and 6 were issued.
17. Mr. M. C. Shah contends that, in any case, Master cannot have been given the powers of a Collector before a case under the Act arose, and he submits that, a case under the Act can arise only after a notification under Section 4 is issued. We find no substance in this point. In our judgment, there is nothing in the definition or in the Act or in the rules which requires that an officer can be entrusted with the functions of a Collector only after a case under the Act arises. It is true that, under Rule 4, it is only after an application from the company is received that direction can be given by the Government concerned to the Collector to make a report But, there is nothing in that rule which suggests that, in order to entitle an officer to function under Rule 4, a notification empowering him with the functions of the Collector every time an application from a company is received by the Government, should be issued. In our judgment, all that Rule 4 requires is that, before any direction is given, the officer concerned must be the Collector within the meaning of Clause (c) of Section 3. Having regard to the facts of the present case, Master was already a Collector. The application made by the company had been referred to Master for making enquiry and report in the matter of that application. For the aforesaid reasons, in our judgment, the first part of the first submission of petitioners deserves to be rejected.
18. The second part of the first submission of Mr. M. C. Shah is that, the Land Acquisition Committee should have also given an opportunity to petitioners to be heard before it. This contention is based on the submission that, the proceedings before the Land Acquisition Committee are quasi-judicial proceedings. We are unable to agree with this contention. Mr. Shah's argument is as follows: He contends that, the enquiry under Rule 4 is a quasi-judicial enquiry and, that being so, the proceedings before the Land Acquisition Committee must necessarily bear the same character as the enquiry under Rule 4. We propose to assume, though we express no opinion on the validity of that contention, that an enquiry under Rule 4 is a quasi-judicial enquiry. However, in our opinion, even on that assumption, there cannot be any doubt whatsoever that, the proceeding before the Land Acquisition Committee is not a quasi-judicial proceeding at all. The provisions of Rule 3 do not leave any doubt about the consultative character of the Land Acquisition Committee. It is true that, under Sub-rule (3) of Rule 4, the Government is bound to send a copy of the report of the Collector to the Land Acquisition Committee. But, the fact that such a duty is cast on the Government cannot have any repercussions on the character of the Land Acquisition Committee. Under Sub-rule (5) of Rule 3, the only duty which is cast on the Land Acquisition Committee is an advisory duty. The Committee is consultative in character. Its advice is to be based mainly upon the report made by the Collector. That Committee is bound to tender its advice within one month from the date on which it is consulted or within such period of time not exceeding two months, which may be extended by the Government. There is nothing in Rule 3 which shows that, the Government is bound to wait for reaching its decision if the Land Acquisition Committee does not happen to give its advice to the Government within the aforesaid period. In our judgment, therefore, the Land Acquisition Committee is entirely a consultative Committee and it cannot be said that, it has any quasi-judicial functions to perform. Under the circumstances, the second part of the first submission of Mr. M. C. Shah also deserves to be rejected.
19. The second submission of petitioners is that, the purpose for which the impugned acquisition is being made is not a public purpose within the meaning of Section 40, Sub-section (1), Clause (aa) of the Act. The submission is a narrow one. Under Section 6 of the Act, when a notification under that section is issued that any land is needed for a public purpose, or for a company, the declaration so made is conclusive evidence that 'land is needed for a public purpose or for a company. ' In Smt. Somawanti and Ors. v. The State of Punjab and Ors. reported in : 2SCR774 , their Lordships have held that, because of this provision, it is not possible, after such a declaration is made, for any party to challenge the acquisition on the ground that the land is needed for a public purpose or for a company. It is not disputed by Mr. Shah that, the public purpose as mentioned in the notification under Section 6 is not justiciable. This is so, because, the provisions contained in Clause (2) of Article 31 that, no land shall be acquired except for a public purpose, cannot be invoked for challenging the above provision of the Act contained in Section 6, by virture of Clause (5) of Article 31 which protects a pre-Constitution Acquisition Act. It is also not disputed by Mr. Shah that, for the same reason, he is not in a position to challenge the notification issued under Section 6 of the Land Acquisition Act that the lands in question are needed for a company. But, the contention is that, though he cannot challenge that the land is needed for a company, he can challenge that the consent, given by the appropriate Government under Chapter VII, is not validly given. It is not disputed by the learned Advocate General that, when an acquisition is for a company, in order that the acquisition may be valid, the appropriate Government must comply with the provisions contained in Chapter VII of the Act. Section 39 of the Act says that, the provisions of Sections 6 to 37 shall not be put into force to acquire land for any company unless the previous consent of the appropriate Government has been obtained, or unless the company has executed an agreement as thereinafter mentioned. Now, Section 40 says that, such consent shall not be given by the appropriate Government unless that Government is satisfied, as provided for in Clauses (a), (aa) and (b) of Sub-section (1) of Section 40. Clause (aa) has already been reproduced by us above. That clause in effect enacts that, the Government shall not give its consent unless it is satisfied that the proposed acquisition is intended 'for the 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. ' This Clause (aa) was, as already indicated, introduced for the first time after the first Arora's case : AIR1962SC764 by the Amending Act XXXI of 1962. That clause came up for consideration in the second Arora's case reported in : 6SCR784 . This clause also came up for consideration before this Court in Patel Mangalbhai Nathabhai and Ors. v. The State of Gujarat and Ors. reported in V G.L.R., page 329. In the latter case, it has been held that in order that the Government may be satisfied under Clause (aa), the company, for which acquisition is intended to be made, must be of the description which is mentioned in that clause. It has been held in the second Arora's case that the true construction of the aforesaid clause is that the company must be a company which is engaged or is about to be engaged in any industry or work which subserves a public purpose. It has also been held in that case that the acquisition must be for the construction of some building or work for the public purpose which such company subserves. In other words, in order that Clause (aa) may apply, it is necessary that the company must either be engaged or be about to be engaged in an activity which serves a public purpose, and secondly, the land or building which is intended to be acquired for such company must itself be intended to be acquired for a purpose which would be the public purpose for which the company is engaged or is about to be engaged. Therefore, it is quite clear that, in order that Clause (aa) may apply, the public purpose, which the company subserves or which the land or the building sought to be acquired will subserve, plays an important role. Now, it is not disputed by the learned Advocate General, and in our judgment rightly, that, the public purpose on which the Government is to be satisfied under Clause (aa) aforesaid, is a justiciable issue. This is so, because, Clause (aa) is a post-Constitution enactment and has not the protection given to pre-Constitution Land Acquisition enactments. This was expressly so held by this Court in the case of Patel Mangalbhai Nathabhai and Ors. v. The State of Gujarat and Ors. reported in V G.L.R., page 329, referred to above. Therefore, the Learned Counsel on both sides are agreed that the question as to whether the company for which acquisition is being made subserves a public purpose or not is a justiciable issue and falls to be decided by this Court in case the same happens to be raised by a landholder challenging the land acquisition proceedings. Now, elaborate arguments were addressed by Learned Counsel on both sides as to which a public purpose is, and a number of cases were cited by both the sides. In our judgment, it is not necessary for us to quote or to notice those cases, because, in our judgment, by this time, the judicial approach, which is to be made for determining whether a purpose is a public purpose or not, has been well settled. That question is essentially a question of fact and depends upon the facts of each case. It has been pointed out in more than one case that, the concept of public purpose is not a static concept, but must necessarily differ from time to time according to the social, economic and educational needs of the society. It may differ also from context to context. It is also pointed out in more than one case that the concept of public purpose is not, precise and definite and that it is imprudent to undertake to define it or to find any standard formula which would include all circumstances constituting public purpose. One of the tests which was adopted by their Lordships of the Privy Council in Hamabai Framjee Petit v. Secretary of State-far India A.I.R. 1914 P.C. 20, from the judgment of Batchelor J., is that public purpose, whatever else it may mean, includes 'a purpose, that is an object or aim, in which the general interest of a community, as opposed to the particular interest of individuals, is directly and vitally concerned. ' Bearing in mind the test laid down in Hamabai's case, we propose to determine the question of public purpose in this case.
20. The first question is, whether, the company is one which is engaged or about to be engaged in any industry or work which subserves a public purpose. It is clear that, it is not necessary that the company concerned must be one in the public sector. Clause (aa) applies to a company belonging to the private sector also. There are no words of limitation in that clause which would support the construction that it is restricted only to companies in the public sector. But, by virtue of the provisions contained in Section 44, Clause (aa) of Section 40 will not be applicable to a private limited company of the kind referred to in that section. Except for the above kind of the company, it is quite clear that, the expression 'company' used in Clause (aa) is comprehensive enough to include companies in the private sector. But, in order that acquisition may be made under Clause (aa) for such a company, it is necessary for such a company to establish that it is engaged or is about to be engaged in any industry or work which subserves a public purpose. For that purpose, respondents rely upon the facts elicited in the affidavit of Sheth. From that affidavit, it appears, in the first instance, that, the company manufactures or intends to manufacture the following items:
(1) Dyestuffs and pigments;
(2) Tinopal and Metanilic Acid and other intermediates;
(3) Phthalic Anhydride;
(4) Cyanuric Chloride, and
The affidavit shows that, dyestuffs proposed to be manufactured will be useful as raw materials for the defence purposes and also serve as raw materials for the textile mills. The affidavit also discloses that, the material known as 'Weed Killer', which the company intends to manufacture, can kill harmful weeds which do damage to crops and can be extensively and beneficially used in agricultural operations. Now, in our judgment, it cannot be denied that, an activity which caters to the needs of the defence of India must be regarded to be an activity beneficial to the general public. We are not in agreement with the submission of Mr. M. C. Shah that, for the purpose of determining whether a company subserves a public purpose or not, the product which it manufactures is of no importance whatsoever. It may be that, when a land is being acquired for a purpose mentioned in Clause (b) of Sub-section (1) of Section 40, the final product may not be of any importance on account of the provisions contained in Sub-section (5) of Section 41. But, when determining the question as to whether the company does or does not answer the description of subserving a public purpose, in our judgment, the product, in the manufacture of which the company is engaged, cannot be ignored altogether. In the second Arora's case, their Lordships have held, on a concession made at the Bar, that, a company engaged in the manufacture of spare parts of textile machinery was a company which subserved a public purpose. In Somavanti's case : 2SCR774 their Lordships held that, a company engaged in the manufacture of refrigeration materials also subserved a public purpose. In addition to this, the affidavit of Sheth shows that, the company has entered into an agreement with its Swiss Collaborators, as a result of which, the company will be able to import valuable plant and machinery which will save foreign exchange to the tune of rupees fifty lac and which amount the company will be able to utilize for a period of ten to fifteen years. Thus, as a result of the above agreement, the company will be able to save foreign exchange to the tune of rupees fifty lac and will not be called upon to repay the foreign exchange for a period of ten years and will be able, to repay within the period of ten to fifteen years, the amount in instalments. In addition to this, the company will be able to import, on account of the collaboration, technical know-how from its collaborators and thus be able to manufacture articles which at present happen to be imported from other countries. The affidavit of A. J. Sheth shows that, as a result of the efforts of the company, the company will be able to save foreign exchange to the tune of about a crore of rupees per year. In addition to this, the same affidavit shows that, at present the company earns foreign exchange by exporting its articles to the tune of rupees six to seven lac per year, and as a result of the fresh efforts, the company will be able to increase the saving of foreign exchange to the tune of rupees twenty lac per year. In addition to this, the affidavit shows that, the company also caters to the needs of the other industries. In our judgment, it cannot be said that, a company which is engaged in the activities of the aforesaid kind which will cater to the needs of the defence and other industries including agriculture and which will save vital foreign exchange, is a company which does not subserve a public purpose. Mr. M. C. Shah emphasises that, for the purpose of determining whether a company does or does not subserve a public purpose, the dominant purpose behind the activities of the company only must be seen and not its subsidiary purposes. We are not convinced that, the test propounded by Mr. Shah is a correct test. As already stated, Clause (aa) is intended to also apply to companies operating in private sector and is applicable to companies which have been floated or which are working for private gains. The fact that a company is formed for earning profits is no ground for taking it away from the category of companies for which Clause (aa) has been made. In our judgment, the true test appears to be to have regard to the activities of the company in which it is engaged or is about to be engaged and if that activity is one which, on an overall consideration, leads to the conclusion that it subserves the general public or a section or the public as distinguished from services rendered to private individuals or a group of them, then the company is one which answers the description laid down in Clause (aa) aforesaid. We are also not in agreement with Mr. M. C. Shah's contention that the fact that a company saves foreign exchange is no consideration at all. Having regard to the fact that, the Government at present is engaged in the Harculean effort of developing both agriculture and industries in the country which would require foreign exchange, and that, the country needs both to save and earn foreign exchange for its development, in our judgment, the above factor cannot be regarded as of no consequence. In fact, in the case of Patel Mangal 'bhai Nathabhai and Ors. v. The State of Gujarat and Ors. reported in V G.L.R. 329 and in the Supreme Court case of Somawanti : 2SCR774 , the saving of foreign exchange was one of the factors which was taken into account for holding that the company concerned subserved a public purpose. In our judgment, the affidavit filed by Sheth, which has remained uncontroverted, does prove that the company is engaged or is about to be engaged in an activity which subserves a public purpose.
21. The second condition which is necessary to attract Clause (aa) is that, the building or the work, for which the land is acquired, must subserve the public purpose of the company. Except those petitioners whose lands are being acquired and are stated in the affidavit to be acquired for the railway siding, no argument is advanced on behalf of any of petitioners to the effect that their lands were being acquired for a building or work which would not serve the aforesaid public purposes which have been brought out in the affidavit of Sheth. It is quite clear that, in order to decide this question, the particular purpose for which a piece of land is being acquired should not be considered in isolation from the purpose of the subject for which the company exists. A company is a living organism, and, in order to succeed, it does not merely require factories and plant machinery, but, it would require a large number of other structures such as godowns, accommodation for its labourers, open spaces to prevent obnoxious fumes from spreading in the neighbouring localities, roads and buildings for offices. In order to determine this question, it is not necessary that the company's needs must directly contribute to the public purpose for which the company exists. But, if the company as a whole is engaged in a beneficial activity, then, the fact that a particular building or work in which it engages does not directly contribute towards that activity does not take it away from the character of the building or work subserving the public purpose. In the course of the general beneficial activities of the company, the above things are required by the company for maintaining itself as a living organizm. But, Mr. M. C. Shah raises a special argument on behalf of those petitioners whose lands were being acquired for the railway siding. Mr. Shah contends that, acquisition for the railway siding cannot be stated to be an acquisition for a building or work which subserves the public purpose of the company. We are unable to agree with this submission. In our judgment, in order that a company may thrive in a given place, it may be essential in a given case, that it may be provided with direct connection with the railway line, so that its product may be sent to the open market speedily and cheaply. Moreover, in deciding the question as to whether the company answers the aforesaid description that building or land is required for the company to subserve its public purpose, we must bear in mind the principle enunciated by their Lordships of the Privy Council in Hamabai's case A.I.R. 1914 P.C. 20, and by their Lordships of the Supreme Court in the case of State of Bombay v. R.S. Nanji reported at A.I.R. 1956 S.C. page 214 that, though a public purpose may be a justiciable issue and the Court cannot abdicate the decision of the question as to whether a public purpose is or is not served to the satisfaction of the Government, the Court must give due weight to the opinion formed by the Government which has at all times better means of determining the question than a Court of law would have. Under the aforesaid circumstances, we have come to the conclusion that, the acquisition in the present case comes directly within the provisions of Clause (aa) aforesaid, in the sense that, the company answers the description mentioned in the clause and that, the buildings and works for which the acquisition is being made are included in the acquisition to subserve the public purpose for which the company exists. In our judgment, the second submission of petitioners deserves to be rejected.
22. That brings us to the third and the fifth submissions Both these submissions are interconnected. Learned Counsel for petitioners rely upon the same or similar set of facts in support of these two submissions. They were, therefore, argued together by Learned Counsel on both the sides. We propose to take them up for disposal and consider them together. It is not disputed by the learned Advocate General that petitioners are entitled to challenge the acquisition on the ground of mala fide or colourable exercise of the power of eminent domain. He also does not challenge the proposition that, if the Government is guilty of having started the proceedings for acquisition without applying its mind, then, the proceedings will be void. The main ground on which petitioners support the aforesaid two submissions is stated in the petition to be that, though, the company has sufficient lands of its own, which it can utilise for the establishment and expansion of its factory, the company proposes to acquire the neighbouring lands without making use of the lands in its own possession. Except this definite averment, no other particular has been furnished in the petition. The rest of the averments are all general, especially, in regard to the allegation of mala fides. In order to meet the aforesaid specific ground, the company has brought out a number of facts in the affidavit of Sheth. We shall mention those facts just in a moment. What petitioners, however, have done in the present case is that, they have taken up the facts set out in the affidavit of Sheth and contended that, those facts prove the mala fides of the company and establish collusion between the acquiring authority and the company. The whole contention of mala fides centres round the facts set out by Sheth which facts have been summarized in the affidavit of petitioner to be presently mentioned. First of all, we will mention the facts which have been set out in the affidavit of Sheth. Sheth says that the company owns 140 acres of land. But, he denies that, those lands are sufficient for the extension of the factory. He says that, out of 140 acres, 40 acres are ravine lands which are uneven and have large pits. According to him, these ravine lands are not suitable for the factory site. He says that, these lands are to be utilised for building houses for seven hundred workmen and their families, and for providing amenities for them, such as, play ground, sports club, recreation centre and buildings for a co-operative consumer society. He says that, forty more acres have been already utilised for constructing some of the factories, buildings and ware-houses and godowns, which have already been constructed or are in the process of construction. That leaves a balance of sixty acres. According to Sheth these sixty acres are not a compact block and contain in them enclaves belonging to petitioners. According to Sheth, unless these enclaves are acquired, the company cannot make use of that block, as a factory site. In addition to this. Sheth says the company's own lands are separated by a 'nal' and that, the whole block cannot be fully exploited unless the 'nal' is filled up and that, this cannot be done unless and until the neighbouring lands are acquired as the filling up of the 'nal' would block the access to those lands. In addition to this, Sheth says that, some of the lands belonging to the company have no access. Sheth says that, the whole block of land is necessary for the purpose of establishing new factories and godowns. A part of the lands under the neighbours' possession, according to him, is necessary for the establishment of an approach road and providing a railway siding. Sheth explains that, one of the factories will emit noxious fumes and that, in order that such fumes may not endanger the health of the neighbouring localities, it is necessary that the surrounding lands must be kept free and unoccupied. On the basis of the aforesaid facts, Mr. Sheth contends that the company is out to acquire more land than it needs. We are unable to agree with this submission. In our judgment, the facts set out in the affidavit of Sheth do not lead reasonably to an inference that the company is acquiring more land than it needs. The documents produced by Master disclose that this was one of the subjects on which an enquiry was directed by him. Probably, this was also one of the subjects which must have arisen for decision in the enquiry under Section 5A of the Act. It is true that if, from the affidavit of Sheth it appears that the Government has not applied its mind to the question of the extent of the lands needed by the company, it may justifiably be regarded as one of the points which may be taken into consideration in considering the bona fides of the acquisition. However, it is one thing to say that a company has made a proposal for acquisition of lands more than it needs, and another thing to say that, on that account, the Government must be regarded as acting mala fides. If, actually, the extent of the land appears to be more, for example, as a result of an error committed by the Government, the decision as to a part of the acquisition may be regarded as erroneous but on that account, it cannot certainly be regarded as malicious or mala fides. It is for the parties concerned to produce materials which would show to the acquisition authority that the company has acquired more land than is needed. However, Mr. Majmudar places strong reliance upon the case of Mrs. Ambujam Menon and others v State of Kerala and Ors. reported in : AIR1966Ker187 . In that case, the affidavits disclosed that the State proceeded upon an error that all the lands originally acquired by the company had been fully utilized and that, the lands of the appellant of that case were required immediately to enable the company to complete its project. On the above facts, it was held that, the Government had not applied its mind to the relevant facts of the case and, therefore, the acquisition was bad. However, in our judgment, it is not possible, on the facts of the present case, to conclude that the Government had failed to apply its mind on the question of the extent of land necessary for acquisition. The argument of Mr. M. C. Shah that forty acres of land cannot be required for housing seven hundred workmen and providing amenities to them, cannot be given effect to, unless, the full facts regarding the topography of the place and the capacity of those forty acres for the other purpose for which the company is requiring the lands, are fully known. No attempt is made by petitioners to place facts under this head. Mr. Shah relies upon the fact that the company possesses land near the railway line and contends that the company could easily have utilized those lands for providing a railway siding. However, no such point has been made in the affidavits of petitioners. Mr. Shah concedes this, but he says that there is an averment in one of the Special Civil applications that company possesses lands near the railway line, and he says that, that itself is enough to establish that the company can utilize those lands for such a purpose. He contends that, the fact that the Government did not take this fact into consideration is evidence of non-application of mind or mala fides of the Government. In our judgment, the fact that the company possesses lands near the railway line cannot lead necessarily to the conclusion that those lands can be utilized for the establishment of a railway siding. Unless evidence is recorded on the subject, it will be risky to reach any such conclusion. For example, the lands of the company may not be suitable for a railway siding. Even if suitable, it is possible that it may not be suitable to the railway company. The railway company may object to the establishment of a railway siding at a particular point on more than one grounds, such as, that the site affects its traffic line or requires the railway company to establish a railway signal, or endangers the railway traffic. From the map, it appears that the lands of petitioners, which are being acquired for railway siding, are near the goods platform. If the point had been specifically raised, it is possible that the company may have been in a position to establish that, because of this facility, the land proposed to be acquired were more suitable for the purpose than their own land. It is easy to see that the railway may think it necessary or prudent that a railway siding should be as near the goods platform as possible. The establishment of a railway siding at another point may require also a new goods platform to be erected, or may create a situation which may interfere with the general railway traffic. But, contends Mr. Shah that all these points should have been brought out in the affidavit of Sheth or the other respondents and, in the absence of any such averments, this Court cannot take the above facts into consideration. We cannot agree with this submission. If petitioners intended to rely upon the fact that the company could have utilized its on lands for the establishment of a railway siding and that, all the relevant factors on the aforesaid point had been not considered by the Government, it was, in the first instance, the duty of petitioners to place the relevant facts on the aforesaid aspect, in which case, possibly, it may have been necessary for respondents to place all the aforesaid considerations with a view to rebut any inference which may have been drawn on account of the aforesaid allegation. In our judgment, having regard to the central fact that petitioners themselves have not given any particulars of mala fides except one, namely, that, the lands of the company were sufficient for the establishment of its factories and that none of the allegations, on which they now rely, and which allegations happen to be set out only after the facts were fully disclosed in the affidavit of Sheth, it is impossible to accede to the contention of petitioners that the action of either the company or the State was mala fides or that, the Government was guilty of non-application of mind.
23. We now propose to deal with the specific eight grounds which have been summarized in the affidavit in rejoinder as indicating mala fides and non-application of mind. Firstly, it is contended that the State is attempting to acquire lands from 1962. This is true. But, in our judgment, no inference of mala fides can be drawn from this particular fact, especially when the record shows that, at more than one stage, the Government acted fairly in regard to petitioners. The Government brought the first acquisition proceeding to an end as soon as it came to the conclusion that the site was not suitable for the establishment of a fertilizer factory. We cannot draw an inference that the Government is acting mala fides simply because, the second acquisition proceeding happened to be started on the very next day after the first acquisition proceedings were dropped. Petitioner had nowhere made any allegation which would have given notice to the Government to bring out the circumstances as to how and why the second proceeding came to be started on the very next day after the first acquisition proceedings happened to be dropped. The second acquisition proceedings were dropped on account of a judicial pronouncement made by the Supreme Court in the first Arora's case : AIR1962SC764 . The correspondence shows that, though the company requested the Government to keep the notification under Section 4 intact even after first Arora's case, it refused to do so. This is more an evidence of bona fides of the Government than any evidence of collusion between the company and the State. The Government, in answer to a request made by the company to continue the old proceedings, clearly stated that, it would not be in a position to do it unless the writ petitions filed by some of petitioners were judicially determined and unless a proper enquiry as required by the company rules was made. Actually, such an enquiry was held and, as the record shows, fullest opportunity was given to petitioners to make all proper representations in regard to the points arising for determination under Rule 4. Similarly, the Land Acquisition Officer also gave proper opportunity to petitioners to make their representations under Section 5A. Secondly, petitioners contend that the Government was acquiring land in spite of the report of Master which was adverse to any such acquisition. We fail to see how this can be regarded as evidence of mala fides. On the contrary, the fact that an officer of the Government made such a report can legitimately be regarded as absence of any evidence of collusion. The Government is not bound to accept the report of the Collector on the objections raised by the landholders blindfoldedly. The State has a duty to perform and is the final authority under the Act to decide upon the objections. Moreover, this point has not been elaborated to show that the Government had no reasonable ground for differing from the view taken by Master. The third ground is alleged to be that, the Government was indifferent to the hygiene of the neighbourhood inasmuch as it was permitting the company to establish a factory which would emit noxious fumes. We fail to see how this can be evidence of mala fides. Moreover, there is nothing on the record to show that the health of the locality is likely to suffer on account of the emission of noxious fumes, specially as the affidavit of Sheth shows that sufficient lands are left open round about the proposed factory likely to emit noxious fumes. The next ground that, the acquisition was being made without following the company rules, has no substance inasmuch that point as already stated, was given up at the time of the arguments and a new point based on Rule 4 has been negatived by us. Petitioner says that he himself is engaged in an industrial activity inasmuch as he manufactures 'Sagol' which also serves a public purpose. He says that, therefore, the Government is acting mala fides inasmuch as it prefers one public purpose to another. The Supreme Court has negatived such a contention in Somawanti's case : 2SCR774 . The sixth ground which is urged is that, the acquisition of the lands will virtually amount to closing down petitioners' business and factory. This ground must also be negatived for the same reason as ground No. 5. We have already considered the seventh ground and rejected the same. That seventh ground is that, the company possesses sufficient lands for its needs and can exploit the same. The eighth ground is that, the State Government itself possesses land in the adjoining area which it can spare for the company. We do not think we can regard this also as any evidence of mala fides or not-application of mind. Finally, Mr. Shah contends that the purpose which is mentioned in the notifications for the acquisition is different from the purpose, or, at least, some of the purposes, which have been menti6ned in the affidavits. We have already stated that the notifications mentioned the purpose of the company, namely, for the establishment of a factory for the company. The affidavits, on the other hand, disclose that the acquisition is also being made for the establishment of godowns, approach roads and a railway siding. In our judgment, there is no merit in this contention. When the notification says that, the acquisition is being made for the establishment of a factory, in our judgment, it includes all the aforesaid purposes. A factory, as already stated, is a living organizm and requires for its success and prosperity, besides a factory site, machinery and plant, such other things as roads, a railway siding, godowns, houses for its workmen and social amenities for them. Mr. Shah says that the notification only mentions that the company manufactures optical bleaching agents and intermediate dye-stuffs, whereas the affidavit of Sheth discloses a large number of other articles. He contends that this discloses either a change of purpose or non-application of the Government's mind. In the first instance, Mr. Shah ignores the word 'etc' in the notification. In the second instance, in our judgment, all that the notification requires to state is that the acquisition is for a company. It is not necessary that the notification must also mention that the company is engaged in the manufacture of particular kinds of articles. That may be necessary for assuring the landholders that the company is engaged in activities which subserve a public purpose. But, that the Government would do only if challenged that the company does not subserve a public purpose. It is not necessary that that fact should be mentioned in the notification itself. In our judgment, therefore, none of the specific grounds, which have been later on added in the affidavits of petitioners, can be regarded as evidence of mala fides or non-application of mind.
24. The seventh submission, as reformulated, is that, though an enquiry under Section 5A is administrative in nature, still, petitioners are entitled to be heard by the State before the impugned notification under Section 6 is issued. To understand this submission, it is first necessary to read Section 5A of the Act. Sub-section (1) of that section confers a right upon a person interested in any land notified under Section 4 'to object to the acquisition of the land'. Sub-section (2) enacts that, every such objection shall be in writing and shall be made to the Collector. That sub-section casts a duty upon the Collector to give an opportunity to the objector to be heard and confers upon him power to make any further enquiry, if he thinks necessary. The same sub-section also casts a duty upon the Collector to submit the case for the decision of the appropriate Government. In doing so, the Collector is required to send the record of the proceedings held by him and a report containing his recommendations on the objections. The sub-section ends by stating that the decision of the appropriate Government on the objections shall be final. Now, it is not disputed by petitioners that, all this procedure was undergone. Their intention, however, is that, they should have been heard by the State and, in the absence of any such hearing, the principle of natural justice has been violated. Mr. Shah concedes that, as the enquiry referred to in Section 5A is an administrative enquiry, all the rules of natural justice are not applicable thereto. But he contends that the essence of that enquiry is that, it is the Government which takes the final decision on the objections to be raised by an objector and, though the . Collector gives a hearing to him, the objector has no chance of placing his case before the Government which takes the final decision. In fact, according to him, the Government will be reaching its final decision on the basis of the report of the Collector to which report an objector has no access and of the contents of which he has no knowledge and which, thus, he has no opportunity to controvert. Mr. Shah says that, the acquisition proceedings encroach upon the property rights of a landholder -the right to hold his property. He says that, though the general rule is that the principles of natural justice are not applicable to administrative enquiries, there are exceptions to the general rule and one of the exceptions is that, when an administrative enquiry affects the property right of a citizen, then, the rule of natural justice applies and an opportunity must be given to the citizen to object to the acquisition proceedings. In support of his contention, Mr. Shah relies very strongly upon the decision of the Calcutta High Court in Kamal Singh Rampuria and Ors. v. Corporation of Calcutta and Ors. reported in 0044/1960 : AIR1960Cal172 . D. N. Sinha J. enunciates the rule in the following words at page 177:
The think that it may be safely accepted that, ordinarily, an administrative order does not require previous notice of hearing of the objections of the party affected, unless there is some law which provides for such notice or such hearing. To this principle, however, there are certain exceptions. One of the recognised exceptions is the case where right of property is affected. The matter has been explained by me in Luxmi Janardan Jew v. State of West Bengal : AIR1959Cal402 . I have pointed out that there is a line of cases in England which is authority for the proposition that in the absence of a statutory provision to the contrary, no man can be deprived of his property or his right to property affected, without having an opportunity of being heard in his defence. The leading cases are Cooper v. Board of Works for Wandsworth District (1863)14 C.B.N.S. 180; Hopkins v. Smethwick Local Board of Health, (1890) 24 Q. B. D. 712 and Smith v. The Queen (1878) 3 A.C. 614. The principles laid down in these cases may be shortly put in the words of Erle C. J. in Cooper's case. (1863) 14 C.E.N.S. 180 (supra), as follows:Although the words of the statute, taken in their literal sense, without any qualification at all, would create a justification for the act which the District Board has done, the powers granted by that statute are subject to a qualification which has been repeatedly recognised, that no man is to be deprived of his property without having an opportunity of being heard....
The learned Advocate General very seriously disputes the correctness of the aforesaid proposition. In any case, he submits that, the proposition is not applicable to Indian conditions. The learned Advocate General contends that, the power to acquire land is the power of eminent domain and that, such a power is not controlled by the fundamental right guaranteed under Article 19(1)(f) of our Constitution. He submits that, it is now well-settled that the Act is protected from the challenge under the above clause of Article 19 Therefore, he contends that, there is no question of testing the validity of any objection against that law on the basis as to whether it is or is not a reasonable restriction on the right of a landholder. Mr. Nanavati supports the learned Advocate general in this contention. We are not convinced that the Calcutta case can be distinguished on the above ground. The principle which is enunciated by the Calcutta case is one of the construction of a statute when it affects property rights of a citizen. It says that, when property rights of a citizen are to be affected by an administrative order, it is open to the Legislature to provide specifically that the citizen shall not have any right of hearing before his land is acquired. But it further says that, if the Legislature has not expressed its mind, expressly or by necessary implication, then, the question arises for the consideration of the Court as to whether the Legislature has or has or has not implied that before depriving a citizen of his property rights, he should be heard. The problem thus is not one of Constitutional law at all. The problem is one of the construction of a statute. In our judgment, the fact that the Act is immune from an attack under Article 19 is no ground for the non-application of the above principle. The act is a pre-Constitution Act. There is no doubt whatsoever that, the ordinary principles of construction of a statute would have applied to the Act before our Constitution was framed. There is nothing in our Constitution to indicate that, such principles, if applicable to the interpretation of the Act, should not be to applied. In our judgment, the principle appears to be sound and backed by a number of English authorities. However, though this is so, we are in agreement with the further argument of the learned Advocate General that, the Calcutta case cannot be regarded as good law in so far as it says that, in the above circumstances, what is required to be done is to give an opportunity to be heard. In any case, he submits that, a personal hearing is out of the question all together. There is authority for the proposition that personal hearing is not a part of natural justice. This is what was decided by their Lordships of the Supreme Court in F.N. Roy. v. Collector of Customs, Calcutta and Ors. : 1983ECR1667D(SC) . All that is required to be done in' the case of an administrative order affecting property rights is to ensure fair play. In Radheshyam Khere and Anr. v. The State of Madhya Pradesh and Ors. reported in : 1SCR1440 , their Lordships enunciate the rule as follows:
To say that action to be taken under Section 53-A is an administrative action is not say that the State Government has not to observe the ordinary rules of fair play. Reference to the observation made by Fortesque J. in Dr. Eentley's case about God asking Adam and Eve whether they had eaten the forbidden fruit appearing in the judgment of Byles J. in Cooper v. Wandsworth Board of Works (1863) 14 CB(NS) 180 : 143 ER 414 is apposite. The decision in the last mentioned case clearly establishes that in some cases it may be necessary to give an opportunity to a party to have his say before an administrative action is taken against him. But that is quite different from the well ordered procedure involving notice and opportunity of hearing necessary to be followed before a quasi-judicial action, open to correction by a superior court by means of a writ of certiorari, can be taken. The difference lies in the manner and mode of the two procedures. For the breach of the rules of fair play in taking administrative action a writ of certiorari will not lie.
25. It will be noticed that the above rule is enunciated by their Lordships after considering Cooper's case (1863) 14 CB (NS) 180, on which D. N. Sinha J. has relied in deciding Kamal Singh Rqmpuria's case 0044/1960 : AIR1960Cal172 . Therefore, in our judgment, in order to succeed, Mr. Shah must show not merely that, an opportunity is not given to petitioners, but he must further show that the principles of fair play have not been complied. In the present case, in our judgment, the Legislature itself has indicated what principles of fair play should be employed. It has made elaborate provisions for receipt of objections, consideration thereof by an officer holding the highest rank in the district and has required the Government itself to consider not merely the objections of the objector but also the record proceedings and the report of the Collector. It appears that, the Legislature has taken the view that, in case of the above types, an enquiry by an officer, who is likely to have more local knowledge of the conditions prevailing in the District and be acquianted better with the needs of the people and/or companies operating in the same, would be a better person to appreciate the objections and inform the Government of what action should be taken in a contemplated case. Therefore, there is no substance in the seventh submission of Mr. Shah and the same must be rejected too.
26. For the aforesaid reasons, in our judgment, none of the submissions formulated by Mr. Shah and urged by Learned Counsel for petitioners, has any merit, and they deserve to be rejected. Therefore, the petitions fail and must be rejected with costs. Rules discharged with costs.