BELEGAL GUNDACHAR AND ANR. Vs. THE STATE OF MADRAS REPRESENTED BY THE COLLECTOR OF BELLARY AND ORS.
LAWS(MAD)-1952-9-28
HIGH COURT OF MADRAS
Decided on September 03,1952

Belegal Gundachar Appellant
VERSUS
State Of Madras Represented By The Collector Of Bellary Respondents

JUDGEMENT

Rajamannar, J. - (1.) THE two petitioners in "this petition, are the joint pattadars of S. No. 406 in the village of Kamalapuram, Hospet taluk, Bellary district. The said plot of land and other plots covered by S. No. 405 etc., belonging to the petitioners are being irrigated by '. water taken from sluice No. 68 in the Government Roya Channel through a main distributory channel which runs over some of the lands belonging to the petitioners as well as on poromboke lands. The third respondent is the pattadar of S. No. 404 lying to the north of S. No. 406. Though it is registered as dry, it can be cultivated with wet crops if there is adequate water supply. After obtaining reports from the Revenue Officers the Collector sanctioned a proposal for the acquisition of a portion of S. No. 406 belonging to the petitioners for excavating a field distributory channel to irrigate S. No. 404 belonging to the third respondent, provided the cost of the acquisition was met by the third respondent. Accordingly a notification under Section 4(1) of the and Acquisition Act was published in the Fort St. George Gazette of 31 -1 -1951 wherein it was stated that an extent of 6 cents in s No. 406 was needed for a public purpose, to wit, for excavating a field distributory channel to irrigate S. No. 404 from sluice No. 68 of the 'Roya Channel. After due enquiry under Section 5(a) of the Act a notification under Section 6 was published on 24 -4 -1951. The petitioners challenger the validity of this acquisition on the ground that the purpose of the acquisition being solely for the benefit of a single individual, namely, the third respondent, cannot be said to be a public purpose. It must now be taken as well established that the power of the State - to acquire property compulsorily is a power to acquire it only for a public purpose. Public purpose is a content of the power itself. Mahajan J. in the recent Supreme Court decision, - - 'State of Bihpar v. : [1952]1SCR889 (A) observed thus: "Public. purpose is an essential ingredient in the very definition of the expression 'eminent domain' as given by Nichols and other constitutional writers ...... The exercise of the power to acquire compulsorily is conditional on the existence of a public purpose ...... Jurisdiction to acquire private property by legislation can only be exercised for a public purpose. It may be the purpose of the Union or the purpose of the State or any other public purpose. Private property can -not be acquired for a private purpose."
(2.) THE only question, therefore, is whether the purpose of the impugned acquisition can be said to be a public purpose. There is no definition of "public purpose" either in the Constitution or any other relevant statute. Indeed, as pointed out by the Supreme Court, the expression "public purpose" is not capable of a precise definition and has not a rigid meaning. "The definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs", : [1952]1SCR889 (A). Mr. M.S. Ramachandra Rao, learned counsel for the petitioners contended that whatever test be applied it could never be said that when the purpose is ostensibly only to benefit one particular individual, it is a public purpose. In support of his contention he relied - on two decisions of the Supreme Court of the United States. In - - 'Missouri Pacific Ry. Co. v. Nebraska Ex rel, Board of Transportation',, (1896) 41 Law Ed 489, the validity of an order of the Nebraska State Board of Transportation requiring a railroad company to surrender a part of its land to private persons for the purpose of building and maintaining their elevator upon it was questioned. The Court held that it was illegal as it would result in the taking of private property of a person without his consent for the private use of another. The principle of the decision is to be found in the following passage; "This court, confining itself to what is necessary for the decision of the case before it, is unanimously of opinion that the order in question, so far as it required the railroad corporation to surrender a part of its land to the petitioners, for the purpose of building and ' maintaining their elevator upon it, was in essence and effect, a taking of private property of railroad corporation, for the private, use of the petitioners. The taking by State of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law and is a violation of the 14th Article of Amendment of the Constitution of the United States." It is important to notice that the order in question in that case was not and was not claimed to be a taking of private properly for a public use under the right of eminent domain. The decision therefore is not of much assistance to us. In - - 'Chicago St. Paul Minneapolis & Omaha Ry. Co. v. Holmberg',, (1930) 75 Law Ed 270 also there was no question of the State's exercise of its powers of eminent domain. A state railroad commission had, by an order, required the construction at the expense of a railroad company and the 'landowner of an underpass connecting the farm lands on both sides of the railroad tracks solely for the convenience and benefit of the landowner in the use of his own property. The Supreme Court held that it was invalid as taking property -'without due process of law.
(3.) LEARNED 'counsel also referred us to the following passages from Willis' book on Constitutional law: "According to the newer viewpoint there is a public use if the thing taken is useful to the public .....Under this rule it is not necessary for the benefit to be for the whole community, but it must be for a considerable number., The fact that benefit also inures to a private individual is no objection." After referring to instances where it had been held that there was sufficient public use, the learned text writer goes on to say: "In these cases there is not necessarily a general use by the public, but there is a general benefit to the public. Private enterprises are thus allowed to exercise the sovereign power of eminent domain, not because they are taking the property for their own use, but because in taking the property for their use they are benefiting the public. Of course, where the taking will benefit a private person alone, there is not a public use even in this newer sense.";


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