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_______________________________________________________Defining ‘Public Purpose’

In Black’s Law Dictionary, the term public purpose has been said to have the objective of
“promotion of the public health, safety, morals, general welfare, security, prosperity and
contentment of all the inhabitants or residents within a given political division” 1. The term varies
with circumstance and time, in accordance to the society to which it is to be applied to. Since it
is a term which requires to be interpreted according to the winds of the time, the State
Government has absolute discretion to decide what is to be regarded as public purpose. The
Legislature, in this case, has left made a very inclusive definition for ‘public purpose’, to keep
the window of opportunity for the Government unhinged and open.

The Land Acquisition Act, 1894 (further referred to as ‘Act’), defines ‘Public Purpose’ 2 as
including:

(i) the provision of village-sites, or the extension, planned development or improvement of

existing village sites;

(ii) The provision of land for town or rural planning;

(iii) The provision of land for planned development of land from public funds in pursuance
of any scheme or policy of Government and subsequent disposal thereof in whole or in part
in lease, assignment or outright sale worth the object of securing further development as
planned;

(iv) The provision of land for a corporation owned or controlled by the State;

(v) The provision of land for residential purposes to the poor or landless or to persons
residing in areas affected by natural calamities, or to persons displaced to affected by reason
of the implementation of any scheme undertaken by Government, any local authority or a
corporation owned or controlled by the State;

(vi) The provision of land for carrying out any educational, housing, health or slum clearance
scheme sponsored by Government, or by any authority established by Government for

1 Black’s Law Dictionary, fifth edition

2 The Land Acquisition Act, 1894, Section 3(f): The expression Public Purpose includes.
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carrying out any such scheme, or, with the prior approval of the appropriate Government, by
a local authority or a society registered under the Societies Registration Act, 1860 (21 of
1860), or under any corresponding law for the time being in force in a State, or a co-
operative society within the meaning of any law relating to co-operative societies for the
time being in force in any State;

(vii) The provision of land for any other scheme of development sponsored by Government
or, with the prior approval of the appropriate Government, by a local authority;

(viii)The provision of any premises or building for locating a public office but does not
include acquisition of land for Companies.

The basic idea behind ‘public purpose’ is the concept of maximum benefit for the largest number
of people. Now, maximum benefit to a group of people, in certain cases, cannot be given unless a
privilege of another is taken away. This attitude was legitimized by Nehru, as he said, “[a few]
must make sacrifices for the development for the nation”, at a speech for the Hirakud dam
foundation laying ceremony, just a few months after independence. 3 Therefore, the individual
interest must be sacrificed before the altar of community interest, as far as public purpose in
acquisition of land is concerned.

3 Smitu Kothari, ‘Whose Nation? The Displaced as Victims of Development’, presented at the Workshop on
‘Displacement and Resettlement towards a National Policy’, organized by the Centre for Development Economics in
Delhi from January 21-23, 1995.
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Articles 374 and 395 of the Indian Constitution can be looked to gauge the enforceability and
policy surrounding the idea of ‘public purpose’. Article 37 puts down that though the directive
principles cannot be enforced by the Judiciary, these DPSPs would be the guiding principle for
the State while legislating. The idea of greater common good and distribution of material
resources have been highlighted in Article 39.

______________________________________________Indian Judiciary and ‘Public

Purpose’

 How has the idea of ‘Public Purpose’ been developed by the Indian Judiciary?
Public purpose was discussed in a number of cases. In Daulat Singh Surana case6, the Supreme
Court looks at the interpretation of Public Purpose. The following cases have all been discussed
in the aforementioned case:

4 Constitution of India, Article 37: Application of the principles contained in this Part.
The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these
principles in making laws.

5 Constitution of India, Article 39: Certain principles of policy to be followed by the State.
The State shall, in particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
(b) that the ownership and control of the material resources of the community are so distributed as best to
subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of
production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment

6Daulat Singh Surana v First Land Acquisition Collector & Others, which can be accessed from
http://indiankanoon.org/doc/1779121/
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 In the American judgment of Munn v Illinois7, Field, J. had observed that though private
buildings can be declared as being used for public purposes to make them be considered
as public building, such was not the case. Though it was declared in a constitutional
convention, the Learned Judge said that the language could never change a private
business or building into a public one.
 In Green v Frazier8, the Court stated that the objective of public purpose should be to
promote “public health, safety, morals, general welfare, security, prosperity, and
contentment” of all the citizens.
 Now, this power to acquire implicitly leads to a right to payment to the ones who have
been alienated from their domain for the welfare of the mass. This was according to
Lord Atkinson in a judgment.9
 In the case Hamabai v Secretary of State10, Batchelor, J. avoided giving a clear precise
ambit of extent to the phrase ‘public purpose’ and left the topic with saying that the
purpose should be of general interest of the community, which was to be put before
particular individual interests. The Court decided in Bhim Singhji11 that public purpose
should serve in the general interest of the community pitted against particular interests of
individuals.

7 Munn v. Illinois, (1877) 94 US 113: 24 L.Ed 77, as read in Daulant Singh Surana, ibid.

8 Green v. Frazier, 176 N.W. 11, 17, 44 N.D. 395, as read in Daulant Singh Surana, Supra no. 6.

9 Central Control Board v. Cannon Brewery co. ltd., (1919) AC 744, as read in Daulant Singh Surana, supra no. 6

10 Hamabai v. Secretary of State, (1911) 13 Bom LR 1097, as read in Daulant Singh Surana, supra no. 6.

11 Bhim Singhji v Union of India, (1981) 1 SCC 166, as read in Daulant Singh Surana, supra no. 6.
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 Mahajan, J., in Bihar v Kameshwar Prasad12, said that the phrase could not be given a
“precise definition and has not a rigid meaning”. The phrase could not have a static and
rigid definition and it was colored according the statute and the social circumstance
whereupon it was invoked. It had to be decided on a case to case basis to determine what
falls under the ambit of general interest of the community. In the same case, S.R.Das, J.
opined that the phrase was to be accorded with the DPSPs and channeled to promote
public welfare.
 To define the phrase, all the circumstances and facets of the statute wherein appears need
to be closed examined to determine whether a public purpose has indeed been instituted.
In Bombay v R.S.Nanji13 the Court opined that though the State Government was
regarded as the best judge to decide whether a purpose is a public one, Courts also have
the jurisdiction to determine whether the requisition passed by the Government
regarding something is for public purpose is actually so or not.
 The Constitutional bench in the Somawanti judgment14 held that the Government would
be the one to determine whether a specific purpose fell within the ambit of the phrase. It
also held that the satisfaction for the Government regarding the same and a subsequent
declaration would be final. Such a decision by the Government could only be challenged
on one ground, namely, if there was colorable exercise of power by the Government, the
aggrieved party could challenge it before the Court. This was also observed in Laxman
Rao v Maharastra15 that the State Government has the ultimate power to take the
decision regarding what constitutes public purpose.

12 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, as read in Daulant Singh Surana, supra no. 6.

13 State of Bombay v. R.S.Nanji, (1956) SCR 18, as read in Daulant Singh Surana, supra no. 6

14 Somawanti v. State of Punjab, (1963) 2 SCR 774, as read in Daulant Singh Surana, supra no. 6

15 Laxman Rao Bapurao Jadhav v. State of Maharastra, (1997) 3 SCC 493, as read in Daulant Singh Surana , Supra
no. 6
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 The question of whether all activities of the Government could be classified to be for
‘public service’ or ‘public purpose’ was answered by the Constitutional bench in
Satyanarain Singh v District Engineer16. The bench opined that by just being useful to
the public would not render the activity to be of public purpose. It could be a private
individual carrying out a public service, or the State carrying out some activity with the
main aim to gain profit. In these two scenarios, the action cannot be classified as being
Public Purpose.

 Doctrine of Eminent Domain

Daulat Singh Surana case17 goes into the discussion of eminent domain. The Doctrine of
Eminent Domain perceives that the right of the state over the land within its territory to acquire
the same for public good is an absolute right, by payment of compensation, which is more often
than not, inadequate.18 The validation for this action for such an action of the State is given
through the idea of public purpose. The doctrine of eminent domain not only lets the State
exercise control over land and other related resources, it also lets the Government decide the fate
of the people living on the land to be acquired for the reason of public purpose, with limited
compensation to the displaced.19 The following cases, as discussed in Daulat Singh by the Court,
are an enlistment of some of the landmark ratios in the concern of Eminent domain:

16 Satyanarain Singh v. District engineer, PWD, Ballia and Another, AIR 1962 SC 1161, as read in Daulant Singh
Surana , supra no. 6.

17 Daulat Singh Surana v. First Land Acquisition Collector & Others, supra no. 6.

18 Usha Ramanathan, ‘Displacement and the Law’, as appeared in ‘Displacement and Rehabilitation: Towards a
Nationa Policy’, Lokayan Bulletin, Special Issue on displacement and Rehabilitation, March-April 1995, pg 1-56.

19 Ibid.
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 A 1977 Judgment20 held that any acquisition of property has to be for public purpose.
Now the decision whether an acquisition qualifies as public purpose depends not on a
thorough scrutiny of facts but a reference to the various provisions in The Act, along with
the Statement of Objects and Reasons of the Act and its Preamble. The question of
whether the purpose of acquisition qualifies as a public purpose would be answered by
checking whether the meaning falls within the meaning of Article 31(2) of the Indian
Constitution (after the 1955 amendment to the Indian Constitution) and the prevailing
statutory law.
 Eminent domain was held to be an necessary element of sovereignty of any State in
Coffee Board v Commissioner of Commercial Taxes21.
 The Court held in Scindia Employees’ Union v Maharashtra22 that through the power
granted to the State under the doctrine of eminent domain, the State can acquire any
piece of land compulsorily, without the “wishes or willingness of the owner or person
interested in the land”23. The Court goes on to state that any declaration made by the
Government under Section 624 of the Act would be indisputable confirmation enough to
regard public purpose.

 The ‘Urgency’ Clause under the Section 17 of the Act

20 State of Karnataka and another v Shri Ranganatha Reddy and Another, (1977) 4 SCC 471, as read in Daulant
Singh Surana , supra no. 6

21 Coffee Board v. Commissioner of Commercial taxes, (1988) 3 SCC 263, as read in Daulant Singh Surana, supra no.
6

22 Scindia Employees’ Union v. state of Maharashtra, (1996) 10 SCC 150, as read in supra no. 6

23 Scindia Employees’ Union v State of Maharashtra, ibid.

24 The Land Acquisition Act, 1894, Section 6: Declaration that land is required for a public purpose
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Section 17(1) of the Act states that the State Government will have the power to acquire land
without payment of compensation in case or an urgency or exigency:
“(1) In cases of urgency whenever the [appropriate Government], so directs, the
Collector, though no such award has been made, may, on the expiration of fifteen days
from the publication of the notice mentioned in section 9, sub- section (1).[ take
possession of any land needed for a public purpose]. Such land shall thereupon [vest
absolutely in the [Government], free from all encumbrances.”
Such exigent situations include “any sudden change in the channel of any navigable river or
other unforeseen emergency”.25 Now, in the case of Shri Radhey Shyam (dead) v UP26, the Apex
Court, drawing reference to other judgments discusses the issue of urgency clause and its effect
of the idea of public purpose.
 In a 1977 case27 the Court held that the State had to bear the burden to prove that the
invocation of the ‘urgency clause’ was justified because of existence of such unforeseen
and emergency circumstances. This view of the Court was followed in a recent 2010
Judgment28.
 Moreover, following the Munshi Singh judgment the Apex Court has stated that though
the existence of unanticipated exigency or urgency is a condition for invoking Section
5A29, whereupon the aggrieved can challenge the decision of the State to acquire the
property in the Union of India v Mukesh Hans30, it is not a conclusive and self sufficient
to invoke Section 5A. In some cases, the Government can ipso facto direct that the

25 Section 17(2), ibid.

26 Shri Radhey Shyam (dead) through L.R.s and Others v. State of UP and Others, (2011) 5 SCC 553

27 Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, as read in Radhey Shyam v UP, ibid.

28 Anand Singh v. State of Uttar Pradesh, (2010) 11 SCC 242, as read in Radhey Shyam v UP, Supra no. 26

29 The Land Acquisition Act, 1894, Section 5A: Hearing of Objections

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provision of Section 5A will not apply. Then is it not clear as to when the acquisition is
done for emergency purpose?
 Of course, in Krishan Lala Arneja case31, the Court held that the presence of ‘public
purpose’ is not enough an excuse to effectuate Section 17. This Section not only deprives
the landowner of his land, but also any “right in relation to that immovable property to
file objections to the proposed acquisition”32 and enquiry under Section 5A of the Act. In
this case, the Court has passed a judgment whereupon it has held that a person should be
given a fair hearing of his objections to the Acquisition, in case of absence of “real and
genuine urgency”. The ‘Urgency clause’ need to be applied with utmost care and due
diligence by the State. The Court said that section 5A of the Act was flavored with a tinge
of articles 14 and 19 of the Constitution. Even though the right to property has ceased to
be a fundamental right, Section 5A allows application of Article 14.
 Dev Sharan v UP33 states that the concept of a welfare state has to be kept in mind whilst
comprehending the idea of public purpose in land acquisition. Though the right to
property was never a natural right and needed the recognition of the State, one can
always argue that without the right to property, the other rights would fade. Since the
ambit of public purpose cannot be bound within a specific boundary, the interpretation
given to the phrase should always incorporate the principle of “maximum benefit for the
largest number of people”, i.e. the application of the concept of public purpose should
tally with the constitutional spirit found in Parts III and IV of the Indian Constitution.
The Court states that Section 17 of the Act will not fall outside the purview of public
purpose. The invocation of Section 17 might limit application of Section 5A, but that is

30 Union of India v Mukesh Hans, (2004) 8 SCC 14, as read in Radhey Shyam v UP, Supra no. 26

31 Union of India v. Krishan Lal Arneja, (2004) 8 SCC 453, as read in Radhey Shyam v UP, Supra no. 26

32 ibid

33 Dev Sharan and Others v. State of UP, (2011) 4 SCC 769, as read in Radhey Shyam v UP, Supra no. 26
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not necessary in every case. The Court further states that many acquisitions are thus
which could have been avoided by exploring other avenues for acquisition so as not to
dislocate the common man from his home. Therefore, it the duty of the Judiciary to
exercise judicial review and examine the necessity and fruitfulness of the proposed
acquisition, keeping in mind, the common law principles of equity and socio-economic
justice.34

Finally in the Radhey Shyam Case35, the Court laid down the following observations:
1. The State, being a sovereign, is allowed to acquire any portion of land within its territory,
including private property, with or without the owner’s consent, on grounds of urgency
and public purpose. Therefore, the Court upheld the Doctrine of eminent domain.
2. The statutes governing compulsory acquisition of property by the state are “expropriators
legislation” and should be strictly interpreted.
3. The Court addressed the plight of the “economically disadvantaged” or other
handicapped people and said that though the State has the power under the doctrine of
eminent domain, any land acquisition from the aforementioned classes would be subject
to judicial review.
4. The State cannot invoke the ‘Urgency clause’ unless there is real urgency. The existence
of public purpose is not enough to defeat a citizen’s right to his property without giving
him a chance to be heard. The ‘urgency clause’ can be invoked only when the acquisition
cannot be delayed for even a few weeks. Therefore, the concerned authority needs to be
fully satisfied about the exigency of the situation before the right to object under section
5A is excluded.
5. The question of urgency has a very subjective answer. It depends on the satisfaction of
the government. It can be challenged on the grounds that the real reason for the
acquisition of the private property was not for any public purpose, but was just a show of
power due to some mala fide intention or reckless mindset of the authorities concerned.
34 Ibid.

35 Radhey Shyam v UP, Supra no. 26

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_____________________________________________________________Concluding
remarks

Usha Ramanathan, in her article, ‘Displacement and the Law’ 36 explains how the utilitarian
principle of maximum benefit for the largest number of people cannot be countered by the Court.
Though in Radhey Shyam v UP, the Court a welfare-oriented judgment, it made one point very
clear that the statute should be given a strict interpretation. This clearly collides with the opinion
of the court that the Decision of the State government will be subject to judicial review.

The idea of public purpose stems from the concept of morality in larger public good. The
judiciary, as mentioned above, has in subsequent cases given certain similar explanations as to
what comprise a public purpose. In one judgment, public purpose has been equated to being
elastic, stretchable. But if it is so equated, there must be a breaking point too, when the land
acquired with the excuse of public purpose is an inherent wrongful act by the State. Then what
can be done? Such situations are not unknown, and the most debated has been the one related to
the Narmada Bachao Andolan, where a liberal interpretation of Article 21 was rejected by the
Court in its final judgment. The Court just depended on the materials provided to it by the
Authorities, while neglecting the entire adivasi protest.

Through the above judgment, the unsettled mindset of the Judiciary can be gauged. Judiciary is
very selective about going into policy. They consider policy and public welfare in some cases
and in some cases they overlook the same. Sathe 37 said that where a fundamental right was being
violated by neglecting policy, the responsibility lies with the court to go into policy discussions,
even though, by discussing the same, they might be encroaching on the domain of the legislature
or the executive.

36 Supra no. 18

37 S.P. Sathe, ‘ Commentary on Supreme Court and NBA’.

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Not only in case of dams, (eg: Hirakud, Sardar Sarovar), the Courts are not willing to look into
policy questions in case of clearance of slums. 38 Condemning the idea of resettlement, the Court
has come up with a anti-slum dwellers attitude. So when the issue of beautification of the city
versus the resettlement of slum-dwellers came up, the Court gladly viewed the former as public
purpose and the latter group as encroachers.39 Viewing it through Amartya Sen’s Capability
approach, clearly, the poor are getting socially excluded, and the deprivation is seen as a level
closer than at what these people would want to. Therefore, a new model of development might
be one of the answers, but it is not the single solution. The Courts, whilst delivering justice, need
to come to a standpoint regarding whereupon to take public policy and fundamental rights into
consideration above state action. Till then, the law shall exist in the unsettled regime as it is.

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38 Almitra Patel v. Union of India, AIR 1998 SC 993

39 Ibid.