IMPORTANT POINT
If approach road to the temple or the place where religious ceremonies are to be performed is to be laid on a permanent basis for perennial use of the members of the public, being devotees, even if to be utilised every year on a single occasion for approaching the place of religious worship, then acquisition of such land would be for construction of some work which is likely to prove directly useful to the public within the meaning of Section 40(1)(b) of the Land Acquisition Act.

Headnote:(i) Land Acquisition Act, 1894 -Section 3(f) - Public purpose-Society managing temple-Acquisition of land for temple at instance of society-Acquisition would not fall within definition of public purpose as per section 3(f)-Such acquisition will be governed by Part VII of the Act-Sections 39, 40 and 41 would be attracted to such acquisition proceedings. (Para 8)
       (ii) Land Acquisition Act, 1864 -Section 40(1)(b) Construction of work useful to public-Connotation of-Construction does not necessarily mean construction over land which must rise above surface of land in all contingencies-Premises of a temple landlocked-Passage to be carved out from surrounding land to enable public to approach temple-Acquisition of appropriate surrounding land squarely covered by Section 40(1)(b).
       The land in question was sought to be acquired at the instance of a society managing a temple for providing for a passage for a decorated elephant carrying the idol of the deity followed by the procession of devotes only once in a year at the time of festival. The land owner contended that the land in question would be required for not more than an hour every year and it could not amount to any need for construction of such work, which has to prove permanently useful to the public for all the year round or even for an indefinite period in future.
       Held : It would not be correct to say that for applicability of Section 40(1)(b) of the Act, that the work concerned should be like hospital, public reading room or library, would result in unduly limiting the wide scope of Section 40(1)(b). It cannot be doubted that if premises of the temple are landlocked, and a passage is to be carved out from the surrounding land so that devotees representing a class of public can approach the place of religius worship may be even once every year, acquisition of appropriate surronding land for that purpose can squarely be covered by Section 40(1)(b) as such a permanent carving out of passage by levelling the acquired land can legitimately be treated to be construction of work directly useful to the public. If an approach road to the temple or the place where religious ceremonies are to be performed is to be laid on a permanent basis for perennial use of the members of the public, being devotees, even if to be utilised every year on a single occasion for approaching the place of religious worship, then acquisition of such land would be for construction of some work which is likely to prove directly useful to the public, as the members of the public, being devotees, can walk over the said constructed approach road for all times to come for going to the religious place concerned. Work of carving out a passage would certainly amount to constrution of the passage in question. Construction does not necessarily mean construction over the land which must rise above the surface of land in all contingencies. It cannot be held that for this type of need, the acquisition proceedings could not have been resorted to at all. (Paras 10 & 12)
       Permissible acquisition for the company under Part VII would be those type of acquisitions where the land sought to be acquired on a permanent basis must be required to be utilised for construction of works which are directly useful to the public. When devotees pass by the road or passage to be carved out for permitting the religious procession to move towards the place of festival, the said construction of road would amount to construction of a work directly useful to the public. (Para 15)
       (iii) Land Acquisition Act, 1864 -Section 40(1)(b)-Land sought to be acquired to provide for passage to procession of temple deity-Procession once in a year-Land owner suggesting alternate deviated rourt that would avert demolition of shop standing on land-Temple insisting on particular rourt on reasoning fastrolger s advice-Held: So called need for having a passage only through land on which land owner s structure stands was not a genuine and felt need for construction of road for use of public. Acquisition proceedings set aside. (Paras 17 to 19)
       (iv) Land Acquisition Act, 1864 -Section 40(1)(b) conditions precedent to invoke provisions.
       When the acquisition is for the company for construction of some work as laid down by Section 40(1)(b), the company concerned has to enter into an agreement with the appropriate Government. As required by Section 41(5), the company has to satisfy the appropriate Government about the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work. A conjoint reading of Sections 40(1)(b) and 41(5), leaves no room for doubt that the construction of such work for the company must be of such nature that it should be perennially and directly useful to the public and should not be of sporadic or of a temporary nature. In other words, it should be permanently useful to the public for all times to come and the public can directly use that work constructed by the company as and when occasion arises. Such work has to be finished within the time schedule laid down by Section 41(5) and conditions on which the work has to be executed and maintained are also to be laid down. Maintenance of such work by the company for supporting the acquisition in question necessarily means maintenance on a permanent basis. (Para 9)

JUDGMENT

S.B. Majmudar, J.-Leave granted.

2. By consent of learned counsel for the parties, we have heard these appeals finally and the same are being disposed of this common judgment.

3. A writ petition was filed in the Kerala High Court by common Respondent No. 1 herein. She challenged the notification issued by the State of Kerala under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act ). The said notification dated 22nd March, 1988 issued under Section 4 of the Act provided that land admeasuring 0.028 cents situated in Kodiyeri village in Tellicherry Taluk of Cannonore district was needed or likely to be needed for a public purpose for providing passage to Pallivetta procession of Sree Jagannath Temple, Tellicherry. The said notification was issued was issued under Sub-section (1) of Section 4 read with Section 17(4) of the Act. It is this notification which was successfully challenged by Respondent no. 1 before the High Court in her writ petition wherein the present appellants were joined as Respondent nos. 4 and 5 while the State Authorities were joined as Respondents nos. 1, 2, 3 and 6. The case of Respondent no. 1 before the High Court in the writ petition was to the effect that she is the owner and is in possession of the land in dispute being R.S. No. 38/1. That she had purchased the property by a registered assignment deed No. 1899 of 1978. At a distance of about 1 km from Respondent no. 1 s property is situated Sree Jagannath Temple, which was established by Shri Narayana Guru in 1906. The said temple was managed by the present Appellant no. 1 - Original Respondent no. 4, while present common Appellant no. 2 - Original Respondent no. 5 is the President of the said Sree Jnanedaya Yogam. As part of the festival in the Jagannath Temple, a Pallivetta (Royal Hunt) is performed on the penultimate day of the festivak every year. The said festival is being held in the month of March every year. The said festival is being held in the month of March every year. It is performed at a place situated to the south of first respondent - writ petitioner s property. On that occasion, the deity IS taken out on an elephant in procession to the place where the Pallivetta is performed. This religious function lasts for an hour. In the said function, the deity is taken down from the back of the elephant and placed at the appointed site and the devotees and the priests perform religious ceremony of propitiating the deity and a pumpkin is being cut at the said place to ward off evil spirits and for earning religius merit. According to Respondent no. 1 - writ petitioner, there is no fixed route through which the elephant carrying the idol and the procession of devotees, passes every year on the aforesaid occasion. At the instance of the present appellants, a part of Respondent no. 1 s land, wherein stands a pucca built shop, was sought to be acquired under thE Aforesaid impugned notification for having a passage for the elephant carrying the idol on the occasion of the aforesai religious function and the said requirement for the passage of the elephant was for one hour every year in the month of March.

4. The said notification was challenged on diverse grounds before the learned Single Judge of the Kerala High Court. The learned Single Judge, after hearing the parties, allowed the original petition and held that when acquisition was not for public purpose , but for a company or for a society like Appellant no. 1, the acquisition was governed by Part VII of the Act and consequently, Section 17(4) dispensing with Section 5-A enquiry could not get attracted.

5. Being aggrieved by the decision of the learned Single Judge, present Appellant No. 1 - Original Respondent No. 4, filed Writ Appeal No. 377/1990 before the Division Bench of the High Court, while original Respondent nos. 1, 2, 3, and 6 filed Writ Appeal No. 400 of 1990 challenging the very same judgment of the learned Single Judge. Both these appeals were he

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1999 Supreme(SC) 1271

Cases Referred (2)