G.M. Lodha, J.
1. The petitioner Bharat Bhawan Nirman Sahkari Samiti Ltd. Jaipur, has filed this stay petition under Section 151 C. P. C. for restraining the respondent No. 1, the State of Rajasthan, 2, Urban Improvement Trust, 3. The Land Acquisition Officer and 4. Rajasthan Housing Board, Jaipur from interfering in the possession of the petitioner Society over Khasra Nos. 87 and 88 situated in Jaipur.
2. The respondents U. I. T. Jaipur and Rajasthan Housing Board, hereinafter referred as 'the Housing Board', have vehemently opposed this stay application on the following grounds:
(i) That the disputed land is already in possession of the Housing Board and, therefore, the application of stay is misconceived.
(ii) that the disputed land has been acquired for the work and project of public utility, namely, the construction of a colony under the provisions of the Rajasthan Housing Board Act for providing cheap accommodation to the low income group who have got no residential accommodation to live in the City of Jaipur. That being so Sub-clause (6) of Art 226 of the Constitution provides a blanket prohibition for grant of any interim order, whether by way of injunction or stay or in any other manner, which will have the effect of delaying action for the execution of work and project of public utility and the acquisition of the disputed property for such execution by the Government or any corporation owned or controlled by the Government.
3. Mr. Birmiwal, learned counsel appearing on behalf of the petitioner has submitted that the acquisition of this land is not for 'public utility'. He also contends that only paper possession has been taken by the Urban Improvement Trust and the Housing Board but in fact the possession is still of the petitioner who has constructed roads and invested huge money on the improvement of the land although no houses have been constructed so far.
4. I have heard learned counsel for the parties and perused the relevant documents produced by both the parties, and the case law cited by them.
5. For the decision of the stay application reliance is placed by the learned counsel for the petitioner on a decision of Andhra Pradesh High Court reported in Talasani China Gang! Reddy v. Dist. Collector, Anantpur AIR 1978Andh Pra 195, where interpreting sub- Clause (6) of Article 226 in relation to land acquisition matter, the Court observed: (See AIR Head Note -- Ed.)
'The words 'public utility' in Article 226(6) have a narrower meaning than the words 'public purpose' as used in Article 31(2). The expression 'work or project of public utility' in Article 226(6) therefore means a work or project like telephone, telegraph, railways etc. which is going to be useful to all the members of the public and will be available to the public at large and not merely to a section of the community. Therefore, when land acquisition proceedings under the Land Acquisition Act are challenged under Article 226(1) interim stay orders can still be granted even after the enactment of Article 226(6) if the acquisition is not being made for execution of any work or project of public utility'.
6. Mr. Birmiwal also invited my attention to Sub-clause (n) of Section 2 of the Industrial Disputes Act, 1947 which defines public utility service.
'2. (n) 'Public utility service' means --
(i) any railway service or any transport service for the carriage of passengers or goods by air;
(ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;
(iii) any postal, telegraph or telephone services;
(iv) any industry which supplies power, light or water to the public;
(v) any system of public conservancy or sanitation;
(vi) any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification:
Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension'.
7. The meaning of 'utility' in Shorter Oxford English Dictionary On Historical Principles Vol II was also referred to and it was argued that it must be for public at large and not a section of public only.
8. Mr. Garg appearing for the Housing Board of Rajasthan in reply submitted that the housing activity of the Housing Board which is State owned Corporation is meant for providing roof to roofless people of poor strata in the society and in the modern concept of public and social welfare, the construction of the housing colonies for providing housing accommodation at a fair reasonable price, is a project of great public utility. According to Mr. Garg the (term) 'public utility' used in Article 226(6) is not to be interpreted to have a limited meaning of what is given in some dictionaries or up to the public utility service as defined in the industrial law but it is to be interpreted to mean any work or project which has got its utility in terms of public.
9. Dr. Tewari and Mr. J. S. Rastogi also adopted the submission of Mr. Garg and submitted that Sub-clause (6) of Article 226 is a complete bar to grant of any stay in those cases where any delay is likely to be caused in the execution or acquisition of any project or work of public utility.
10. Mr. Garg also submitted that the Housing Board has already spent lacs of rupees for this colony and it would create not only inordinate delay in the execution of work of Housing Scheme but virtually compel the Housing Board to abandon this scheme, as the Board cannot wait indefinitely for years together in suspense.
11. There is no doubt that the Andhra Pradesh judgment supports the petitioner and it unequivocally lays down that the stay can be granted in spite of Article 226(6) in case of land acquisition which according to the Hon'ble Judges is not of 'public utility' though for a public purpose. I find it difficult to be in agreement with the view taken by the Andhra Pradesh High Court as the meaning of 'public utility' cannot be limited to the one given by the Andhra Pradesh High Court. The distinction drawn by the Andhra Pradesh High Court, between public purpose and public utility is without real difference for the purpose of interpreting the meaning of public utility as provided in sub-clause (6) of Article 226.
12. According to the view of their Lordships, a work cannot be called a work of public utility unless it is to be utilised by public in general. It is notintelligible to me at least in what manner the distinction has been drawn that although according to Supreme Court, State of Bombay v. All Gulshan, AIR 1955 SC 810, if a purpose is for the section of the public, it would be a 'public purpose' but according to the Andhra Pradesh High Court judgment this analogy would not apply to public utility. To me, it appears that if a section of the people's purpose is a public purpose, a section of people's utility can also be public utility. The analogy of public purpose applies in public utility also.
13. The distinction drawn by the Andhra Pradesh High Court in this respect is not based on any real difference. Moreover, every work or every project would be used only by that section of people which comes into its contact. Both the terms 'purpose' as well as 'utility' have got prefix as public and as public use in connection with purpose can mean a section of public, the logical corollary would be that public in connection with utility would also mean a section of public. After all, any utility cannot be for the entire public as such and is bound to be confined to a section of public which comes into contact of it or utilises it.
14. If a road or bridge or railway ortelephone is used, the entire public would never use it but only what (that) public which would go in railway, would utilise the railway services, which would go on road, would utilise road service, like bridge etc. and who have got telephone facilities, would utilise telephone services. A villager living in a distant place where there is no P. C. O. or telephone, can never utilise telephone services and an Adivasi starving and struggling for his two square meals, can never utilise the railway services, living in a distant village and having no financial resources of travelling in railway.
15. The land acquisition can be made for construction of roads, for construction of dams, for construction of railway line, government offices and for power house of the electricity board or planned housing schemes implementation for the Housing Board Corporation. It is difficult to understand that if the acquisition is made for constructing a telephone line or telephone office, then it would be for public utility, but if it is made for constructing a road and house for implementation of the housing scheme by Housing Corporation then it would ceaseto be of public utility, I am convinced that once purpose of the acquisition can withstand the test of public purpose as admittedly is one in the present case, the utility which that purpose would provide can never be private utility in contradistinction of public utility.
16. If the provisions of the Housing Corporation Act are analysed, it would be clear that the housing schemes are not meant for any individual or a particular caste or a section of the people only but it is meant for public at large. As in the railways only those persons who can get their reservations, can travel in the reserve compartments and the rest may not be able to avail of it, so also in the housing board schemes only jthose members of the people who would get allotment by lottery or otherwise on fulfilling the requisite conditions of not having other houses or land etc., would be able to avail of the public utility created by these schemes, but that would not result in making it a scheme of private utility or personal utility.
17. The notification of acquisition in the present case mentions that the land is required for the planned development of Jaipur City. The notification dated 30th Oct. 1976, Ex. 23 states that the State Government on the petition of the U. I. T. has specified that the land is required for the planned development of urban area of Jaipur City and for that purpose in section No. 2 residential/ commercial/industrial scheme of Jaipur, The genuineness or bona fides of this requirement for the planned development of Jaipur City urban area is not under challenge and as the facts are evidenced on the record, the Rajasthan Housing Board respondent No. 4 has, as argued by Mr. Garg, taken the active steps for the construction of houses by the Housing Board.
18. The development of this area as the Housing colony would not only mean construction of some houses for the public of hundreds or thousands, but it can be allotted to the public as per the rules or regulations and also construction of the roads and various amenities like park, etc. which are usually contained in the Housing schemes of the Board and to which the entire public irrespective whether they are owner of the house or not, will have free access. More and more I consider over this matter to classify this scheme as of public utility or private or personal utility, more andmore I am convinced that there is no private or personal interest in the utilisation provided by this scheme which is wholly or solely, entirely and fully by public as represented by the Housing Board and of the public and for the public.
19. In the Rajasthan case of Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504, resumption of land under the Rajasthan Land Reforms and Resumption of Jagirs Act was held to be for public purpose because the ultimate object of it was for utilisation of this land for various public objects like the allotment of land to the landless etc.
20. In State of Bombay v. Bhanji Munji, AIR 1955 SC 41, house for the homeless was treated as a public purpose. In H. p. Khandelwal v. State of Uttar Pradesh, AIR 1955 All 12, rehabilitation of refugees was termed as public purpose, though it would certainly mean a section of the people only. In Shazad Khan v. Jhallu Singh, AIR 1955 Madh B 146, acquisition for carrying out schemes of land reforms was treated as a public purpose. As already discussed above, I do not find any distinction between the use of the word public in relation to purpose and utility. If the purpose is public then it would be utilised for 'public' only. The term 'public' has been used in generic sense and it is comprehensive so as to include all sections of people. If the refugee can form public, the landless can form public, why the homelass cannot be termed as public and the scheme for providing roof to roofless and home to homeless, cannot be of any other type of utility but the one termed as public utility. If the term 'public purpose' is elastic and takes colour from the statute in which it occurs, the concept varying with the time and state of society and its needs as held in V. Harihara Prasad v. K. Jagannadham, AIR 1955 Andhra 184, I cannot hold that the term 'public utility' has got a very rigid and restricted meaning and can neither be made elastic nor can vary from statute to statute, as public purpose.
21. The scheme for the scheduled castes or scheduled tribes or a section of the society which forms part of public deserves special consideration as contemplated by the Constitution itself, can never be a scheme of private utility or personal utility or utility for some sectarian purpose or vested interest, but it can only be of public utility. In that view of thematter, I have failed to persuade myself to adopt view of the Andhra Pradesh High Court reported in Talasni China Gangi's case, AIR 1978 Andh Pra 195, holding that the proceedings in land acquisition cannot come in the category of public utility.
22. The dictionary meaning given by Black's Law Dictionary to 'public utility' can only be illustrative and not exhaustive. The land acquisition is not restricted for the utility of any particular class or community but is for the utility of public at large. It is difficult to agree to the view that the word 'public' purpose cannot be analogous to public utility as held in the above case. To me, it appears that the word 'public' qualifies utility in the same manner as it qualifies the purpose. Public utility means any work, project which is going to be useful to members of the public at large, in generic sense but it would certainly be utilised in fact by a section or a class or limited number of persons who would come in contact with that particular work or scheme and would utilise it for that purpose. To illustrate again an irrigation dam water can only be utilised by persons who are cultivating the land or irrigating the land and businessmen cannot utilise the irrigation facilities provided by the irrigation canal or irrigation dam or irrigation project but due to that irrigation canal or irrigation dam would not cease to be a public utility. Again, electricity project can only be utilised by those citizens or towns where the electricity of that project is made available and that too, to only limited consumers to whom electricity connections are given or who can afford to take electricity connections if it is offered to them. That would not detract the electricity services from being of public utility. The same is the case of railways, telephones etc. As held the Housing Board or the planned development of the urban area of Jaipur City would be utilised and be of utilisation to the general public in generic sense but in narrow sense it would certainly be utilised only by those members of people who would get allotment by lottery or otherwise or who would pass through those roads constructed there or would go and play in the gardens or would send their children to the schools constructed, if any, in that area.
23. In Corpus Juris Vol. 20 Article 30 pages 552-553 it is observed that somecourts have held that public use is synonymous with public benefit, public utility or public advantage and authorise the exercise of the power of eminent domain to promote such public benefit etc. Justice Das relied upon this passage in AIR 1952 SC 252 at p. 289.
24. In (1923) 262 U. S. 700 at p. 707: 67 Law Ed. 1186, it was observed that it is not essential that the entire community or even a considerable portion should be directly enjoying or participating in any improvement in order to constitute a public use.
25. The various cases referred to above, clearly show that in order to fulfil the requirement of public utility, it is not necessary that public benefit aimed at or intended to be secured, must apply to whole community. All that is required is that in order to make it public utility in contrast to private the utility must be of considerable number of people. It is further fallacious to suppose that it must be for the entire community people as a whole and each one of them. In the treatise 'Writs on Constitutional Law of United States (1936) 818' it has been observed that the public benefit is aimed at or intended to be secured to considerable number of people but need not to be for the whole community.
26. I am, therefore, firmly of the view that the acquisition of the land both under the provisions of the Land Acquisition Act and under the provisions of the U. I. T. Act, by the Government for public purpose would always be for public utility irrespective of the fact that actual utilisation of it for a particular scheme, may be of irrigation, may be of electricity generation plant, may be of roads, may be of government offices or providing shop complex, commercial centres or a park or houses to the homeless people through the instrumentality of the Housing Board. The term 'public utility' is to be understood as it would mean in common parlance and in generic sense having a comprehensive meaning.
27. The 42nd Amendment introduced Sub-clause (6) that was meant for restricting the frequency of the stoppage and impediments which were to be in implementation of such schemes and projects of public utility like toads, dams, housingschemes, railways siding and lines and other various public welfare plans and schemes for the planned development of the society. If the Andhra view is taken to be correct law, it would restrict and limit the concept of public utility to a narrow degree which was never intended to be by the Legislature and, therefore, it would make it nugatory for most of the public utility projects, schemes and works.
28. As I have explained above, I have not got the slightest doubt that the interpretation which I am giving to public utility is only rational interpretation possible and, therefore, with due respect to the learned Judges of the Andhra Pradesh High Court, I am of the view that correct meaning of the public utility would be as mentioned above and the land acquisition for Housing Board project would come within Sub-clause (6) of Article 226 of the Constitution.
29. I am not inclined to attach any importance to the use of the word 'public utility' and not 'public purpose' as pointed out by the Andhra Pradesh by reference to Article 31(2) of the Constitution. In this view of the matter, I am of the opinion that the present case squarely falls within the blanket prohibition provided again the grant of stay and injunction under Article 226 of the Constitution by Sub-clause (6) of it. The present stay petition, therefore, comes within prohibitory degree and is liable to be dismissed on that count alone.
30. I have equally other strong and weighty reasons for rejecting the stay application as the petitioner is not in possession of this land now. The averments in the writ are that the disputed land comprised in Khasra No. 87-88 had been handed over/allotted to the Rajas-than Housing Board, Jaipur for constructing the house which is going to demolish the roads constructed by the petitioner society. Annexures 5 and 6 submitted by the U. I. T. of Jaipur substantiate the allegation of the respondents that the disputed land is not in the possession of the petitioners inasmuch as the possession of it was taken on 7-2-1977.
31. The learned counsel Mr. Birmiwal submitted that the above only evidence paper possession and even though in his writ application he has mentioned at a number of places stray allegations about respondent's possession, in fact the possession is with the petitioner. I am not inclined to accept this contention of the petitioner as the documentsproduced by the respondents regarding taking over possession, remain undisputed and the petitioner himself has made certain admissions including the facts mentioned in sub-para (V) at page 35 that taking of possession of the land in question by the Trust is meaningless as compensation has not been decided and the possession can be given only after payment of compensation. The disputed question of possession even if it is taken to be so, cannot be agitated in this stay matter and this court would presume that once it is shown that the possession has been handed over to the Trust, correctness and validity of it, challenged in the writ petition is a matter which can only be decided at the time of final hearing of the writ application, if at all it can be done on the basis of the material which may be produced.
32. Yet another aspect of the case which is against the petitioner, is that admittedly no house has been constructed so far and, therefore, in case of open land, the petitioner cannot claim any substantial injury which can be termed as of irreparable nature, warranting issue of injunction or stay order and, therefore, the balance of convenience for the purpose of injunction is also in favour of the respondents.
33. Even if Sub-clause (6) of Article 226 would not have been there, in a case of, present type where the petitioner has filed this writ application challenging the notification of 1975/76 after a period of bout two years, it would not be expedient in the interest of justice to stay the implementation of the Housing Board Schemes for providing home to homeless during the pendency of the writ application. Violations alleged in this case are of technical nature even if any of them succeeds on technical pleas, the respondents can still take fresh proceedings to remove those lacunae, if any, and therefore, it is not also in the interest of the petitioner Society to invest any money during the pendency of the writ application by way of allotment of land to its members and to permit them to make constructions.
34. Thus, looking from any angle, I am of the opinion that the present stay application deserves to be dismissed. The petition is, therefore, dismissed and the interim stay passed by this Court is vacated.