JUDGMENT
S.K. Jha, J.
1. In this application under Article 226 of the Constitution of India is involved the objection to a land acquisition proceeding under the Land Acquisition Act, 1894 (hereinafter to be referred to as the Act) on the ground that the acquisition is neither for public purpose nor in conformity with the proviso to Section 6 (1) of the Act. The petitioners -- four in number -- have prayed for an appropriate writ to quash the notification dated 22-4-1967 under Section 4 of the Act numbered as L. A. Patna-11/66/67/5 and the declaration under Section 6 (1) dated 21-6-1967 published in the Bihar Gazette Extraordinary dated 12-7-1967. The notification and the declaration aforesaid have been marked annexures 1 and 2 respectively to the petition. A further prayer has been made for the issuance of writ of mandamus restraining the respondents from interfering with the petitioners' possession over the land sought to be acquired. It may be usefully mentioned here that the area of land under acquisition is 3.0447 acres in village Mainpura, within police station Phulwari in the district of Patna. The notification states that the acquisition was sought to be made by the Government for a public purpose, namely, for the Kurji Holy Family Hospital, respondent No. 2, at Government cost. In the declaration (annexure 2) it has been specifically stated that the public purpose for which Government sought to acquire the land in question was the expansion of Kurji Holy Family Hospital at Government cost. Both annexures 1 and 2 have been assailed as being ultra vires the provisions of Sections 4 and 6 of the Act.
2. According to the petitioners' case, the Kurji Holy Family Hospital, for the expansion of which the land was sought to be acquired, was a private institution which was already in possession of about 11 acres of land since long, which, it is said, is being utilised as orchard and from out of which the hospital is doing business. It has not made any construction in the land SO far, while the petitioners have no other land since all their other lands have already been acquired by the State Government in connection with other projects. The entire compensation to be awarded, according to the petitioners, is being paid by respondent No. 2 and nothing is being paid out of the consolidated fund of the State. On 9-8-1967 the petitioners received a notice under Section 9 in pursuance of which they filed an objection, a copy whereof has been marked annexure 5 to the application. Their objections not having found any favour, the petitioners were compelled to come to this Court for the reliefs mentioned above.
3. Counter-affidavits have been filed on behalf of respondent No. 1, the State and respondent No. 2, the Administrator, Kurji Holy Family Hospital. They are substantially on the same lines. It is said that the hospital is a registered society under the Societies Registration Act, 1860. It is a charitable institution which started catering to the needs of diseased public with 160 beds; the number of beds having been increased from time to time had reached 314 at the relevant date. It has further been asserted that it is incorrect to say that nothing is to be paid by the Government. I think it is worthwhile to quote the stand of the respondents as is to be found in para 5 of the counter-affidavit of the State to the effect that-
".....it is incorrect to say that nothing is being paid out of the consolidated fund of the State. Administrative approval of the State Government is accorded to the above noted project at an estimated cost of Rs. 54,000/- (Rupees fifty-four thousand only). The cost is debatable to the head '29 Medical Works -- Original Works Medical -- Acquisition of land for the Kurji Holy Family Hospital.' Funds will be provided by means of a schedule in the 1st supplementary statement of expenditure 65-66, vide Government Order No. IHI-7031/64-323(l)/H dated 19-11-1966. The award is for Rupees 1,67,358.48."
4. Although it appears that the Kurji Holy Family Hospital is a company within the meaning of Section 3 (e) of the Act being a society registered under the Societies Registration Act, 1860, the acquisition has not been purported to be made for a company and, therefore, the procedure as provided in Part VII of the Act has not been followed nor was it warranted. Parties have proceeded upon the footing, and, rightly so, that the acquisition has been purported to be made for a public purpose at Government cost, and we are not concerned in this case as to under what circumstances and in what manner acquisition can be made for a company.
5. Only two points were raised by Mr. Basudeva Prasad, learned counsel for the petitioners in support of this application. It was argued firstly that the acquisition could not be said to be for a public purpose and the purported acquisition in that garb was merely a colourable exercise of power. The only other point canvassed was that the declaration contained in Annexure 2 must be struck down as being in utter violation of the provisions of proviso to Section 6 (1) of the Act in so far as the entire cost for the acquisition seems to have been met by the Kurji Holy Family Hospital which is a private institution and no amount worth any reckoning is to come forth from the public revenue or the consolidated fund of the State. I shall deal with each of the two points seriatim.
6. Apropos the first point, I feel it apt to prefix my examination of the submissions made by learned counsel for the parties by a few observations which are well settled in law. The term 'public purpose' has eluded a precise and all-pervasive definition applicable in all cases and all circumstances. It is now universally agreed that any concept of 'public purpose' bound in the strait-jacket of any rigid formula is inconceivable. The objective test applied from case to case, which has since been judicially recognised, is that whatever furthers the general interests of the community as opposed to the particular interests of the individuals must be regarded as a public purpose. Public purpose may be achieved through private enterprise as well as through any public agency, There is no provision in the Act precluding the acquisition at the instance of a private agency so long as the purpose for acquisitition is a public purpose. If the acquisition is for a public purpose, the consideration that the State has undertaken the task at the instance of a private entrepreneur or agency or a private institution is not germane. It is well settled that even though the acquisition of land is for a private concern whose sole aim may be to make profit, if the intended acquisition of land could materially help the national economy or the promotion of public health or the furtherance of general welfare of the community or something of the like, the acquisition will be deemed to be for a public purpose.
7. Another aspect which deserves notice at this stage is the provision engrafted in Section 6 (3) of the Act, which makes the declaration a conclusive evidence that the land is needed for a public purpose. The object of the Legislature in engrafting such a provision is to make the determination of the question as to whether an acquisition is made for a public purpose more or less non-justiciable. There is, however, one exception which has always been treated by the courts of law as being an objective check to be exercised by the courts whenever such declaration is found to be fraudulent. In other words, if there is a colourable exercise of power, the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the Government would be colourable as not being re-latable to the power conferred upon it by the Act. To such a declaration the protection under Section 6 (3) of the Act will not extend, for the question whether a particular action was a result of fraud or not is always justiciable, provisions of Section 6 (3) notwithstanding [vide Smt. Somawanti v. State of Punjab (AIR 1963 SC 151)]. And, such an exception is based upon sound legal principle, for fraud in all quantum and dimensions vitiates all proceedings--even judgments and orders of courts of law. There is a fraud upon a power not only when it is exercised in favour of persons who are not the proper objects of the power but also where it is exercised for purposes alien to those for which the power was created. As observed by Lord Chancellor in the case of Duke of Portland v. Lady Marry E. Topham [(1864) 11 HLC 32 at page 54], the donee of the power shall, at the time of the exercise of the power and for any purpose for which it is used, act with good faith and sincerity, and with an entire and single view to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into effect any object which is beyond the purpose and intent of the power. Therefore, where the entire act is protected on account of its being in the interest of public welfare which is the highest law, any acquisition, although purported to be made in exercise of such a power, if not actually intended for the public welfare, cannot seek the refuge Of the statutory protection under Section 6 (3). These being the principles which are well established, I proceed to test the submissions of Mr. Basudeva Prasad.
8. It was argued that the Kurji Holy Family Hospital was not a public body; it was actually a private institution seeking to make profits out of the amenities that it provides for hospital which is being run. Although the fact that the hospital in question is out and out, a profit making institution has been denied and it has been asserted by the respondents that it is a charitable institution, I reiterate that for the purpose of the law, the distinction is wholly immaterial, provided the purpose for which the acquisition is being made, albeit for a private institution,' is a public purpose. The supplementary affidavit on behalf of respondent No. 2 states certain facts which are not disputed. These facts are that for a long time past the need for a modern hospital has been felt in Patna and both the Government and the Patna Jesuit Society were desirous of finding ways and means to establish one. Some land in village Mainpura within Digha police station had been acquired by the Jesuit Society and by about 1950 it had in its possession a little over 20 acres of land 11.29 acres have been purchased by the said Society from the Railway and 9 acres through private treaties from the owners of the land. By 1950 the Jesuit Society had in its possession more or less 50.59 acres of land and in 1951 with a view to establishment of a modern hospital the Jesuit Society made a perpetual settlement of those lands with the Holy Family Hospital. Thereafter the hospital continued to acquire additional land by purchase. As already stated earlier, a modern hospital was initially started with 160 beds for patients which have subsequently been increased from time to time to 314 beds. That the hospital in question is catering to the needs of the suffering public is not denied. But what is asserted by the petitioners is that the charges incommensurate with the amenities provided are taken by the hospital with a profit-making end in view, although respondent No. 2 in its affidavit has stated that the hospital is also running free service to the poor and needy patients who cannot afford to pay for their treatment. But that is neither here nor there. It cannot be accepted that the expansion of a hospital, although it is being run by a private institution, is not for a public purpose. As I have already stated earlier, acquisition for a public purpose at the instance of a private institution, whose sole aim may be profit earning, is not averse to the concept of public purpose. The first point of Mr. Basudeva Prasad, therefore, must be overruled and the statement in the declaration that the acquisition was for a public purpose must, in the circumstances of the case, be held to be conclusive evidence regarding the purpose of the acquisition.
9. The second point rather vehemently urged by Mr. Prasad was that there was intrinsic evidence on the record to show that the entire cost for the proposed acquisition was to be borne by the Kurji Holy Family Hospital and, that, therefore, the declaration was not permissible on the terms of the proviso to Section 6 (1) which en-joins that "no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of the consolidated Fund of the State or some fund controlled or managed by a local authority" (language of the proviso as inserted by the Bihar Amendment by Bihar Act XI of 1961). It was contended that it was the admitted case that the compensation to be awarded did not come wholly out of the consolidated fund of the State. The question is whether it can be said to be even partly out of the consolidated fund or not. In the first instance, learned counsel submitted that letter No. DLAP-319/66 dated 19-10-66 from the Deputy Secretary to Government in the Revenue Department, Land Acquisition Section, to the Secretary to the Government, Health Department, a copy of which has been marked Annexure 3 to the petition, does not give any inkling of any part coming out of the public revenue or the consolidated fund of the State and as such it should be held that the entire cost of acquisition was to be met by respondent No. 2. This submission is misconceived. The relevant portion, of Annexure 3 reads thus-
"With reference to the administrative approval for the above project issued by the Health Department in their memo No. IHI-7031/64-223, dated 19-1-66 I am directed to request you to kindly furnish the requisition in triplicate to the Collector of Patna under information to this Department so that the acquisition proceeding may be taken up under Chap. II of the L. A. Act.
Since the administrative approval in this case has been issued by the Health Department and a sum of Rs. 53,999/- is reported to have been already deposited by the Hospital authorities into the Treasury, the requisition may probably be filed by Health Department to expedite the proceedings."
This communication has to be read in the light of memo No. IHI-7031/64 dated 19-1-66. A copy of that memo has been annexed to the counter-affidavit as Annexure B which reads thus:
"Memo No. IHI-7031/64-- H 323(1)
Government of Bihar
Health Department
Patna the 19-1-66
To The Accountant General, Bihar, Ranch! (Through the Finance Department). Consulted
u/o
"Subject: Acquisition of 2.913 acres of land for expansion of the Kurji Holy Family Hospital, Patna.
Order: Administrative approval of the State Government is accorded to the above noted project at an estimated cost of Rs. 54,000/- (Rupees fifty-four thousand) only.
2. The cost is debitable to the head '29-Medical Works-- Original Works-Medical -- Acquisition of land for the Kurji Holy Family Hospital. Funds will be provided by means of a schedule in the 1st supplementary Statement of Expenditure 65-66.
3. A sum of Rs. 53,999/- will be recovered from the Administrator, Kurji Holy Family Hospital, Patna, who may be asked to deposit the same in advance under the Head of Account' XXIII' -- Medical -- Miscellaneous --Miscellaneous."
By order of the Governor of Bihar
Sd/- D. P. Singh
D.17.1. Under Secrtary to Government."
It will be seen that the two documents (Annexures B and 3) read together amply indicate that the administrative approval of the State Government was accorded to the project in question at an estimated cost of Rs. 54,000/- only out of which a sum of Rs. 53,999 was to be recovered from respondent No. 2 in advance under the head of account--" XXIII-Miscellaneous-Miscellaneous." It may conveniently be stated here that the counter-affidavits of respondents 1 and 2 further show that on 4-6-69 the Governor of Bihar demised the premises in question under a deed of lease operative for 99 years in favour of respondent No. 2 for a consideration of Rs. 53,999 and binding the lessee, respondent No. 2, to pay an annual rent of Re. 1 on or before 31st of March every year and also to pay local rates and taxes, if any, which may be levied upon the premises in question. A copy of aforesaid indenture is marked Annexure C to the counter-affidavit of respondent No. 2, On these facts, learned counsel proceeded to argue that even if it be held that out of an estimated cost of acquisition of Rs. 54,000 only Re. 1 was to be paid by the Government from out of its common funds, that should be treated as a mere artifice for the Government to circumvent the provision of law. And since a part payment of compensation as envisaged in the proviso to Section 6 (1) does not embrace just a token payment, it should be material and substantial in order to fulfil the requirement of law. There are two answers to this argument. Firstly it is not correct or accurate to say that out of the estimated cost only one rupee comes out of the Government coffers. In the background of facts mentioned above, it would be clearly noticed that the award in the case is for a sum of Rs. 1,67,000 and odd although initially the estimated cost of acquisition figured at Rs. 54,000 only. Out of Rs. 1,67,358.48, if the contribution of respondent No. 2 was only of Rs. 53,999 as consideration for the lease paid in advance in the Government treasury, the balance remaining to be paid by the Government is quite substantial. It will be also worthwhile to keep in mind the fact that the property is not being sought to be transferred to respondent No. 2 as if of an estate in fee simple. The entire right, title and interest of the State in the property is not sought to be conveyed; the right of reversion is retained by the Government. The matter cannot be said to improve for the petitioners by the fact that the advance payment as consideration for the lease executed subsequently, which was already credited to the public revenue before the notification and the declaration in question merged into the public exchequer and it may well be argued that after such merger the entire cost is to be borne by the Government.
10. All said and done, however, I now proceed to examine the submission that the payment of the paltry sum of Re. 1 out of Rs. 54000 cannot be said to meet the requirement of the proviso to Section 6 (1). The point argued by Mr. Basudeva Prasad seems to find favour from a Bench decision of the Madras High Court in the case of Ponnaia v. Secy, of State (AIR 1926 Mad 1099). Although this decision was not cited at the Bar, all that has been argued by Mr. Basudeva Prasad seems to have been - borrowed from that decision. A subsequent Bench decision of the same High Court had taken a contrary view in the case of Senga Naicken v. Secy, of State (ILR 50 Mad 308: AIR 1927 Mad 245). In the latter case, Odgers, J., observed at page 247-
"I invited the learned Advocate-General for the appellants, to say where a 'particle' would end and 'part' begin of this sum of Rs.
600. It is true an anna is a very small part of Rs. 600. But nevertheless it is a part."
The English case of Chatterton v. Cave [(1878) 3 AC 483) which was the basis for the earlier Madras decision in Ponnaia's case (supra) was held in Senga Naicken's case as having no analogy on the point since Chatterton's case was one relating to copyright wherein considerations different from those in the latter case under the Act would arise. Madhavan Nair, J., agreeing with Odgers, J., in Senga Naicken's case held at pages 248-249:
"The learned Judges Spencer and Ramesam, JJ. in Ponnaia's case seem to be of the opinion that if the words of the statute are not construed in the way they suggest then the owners should be deprived of their ownership by a mere device of private persons employing the Act for private ends or for the gratification of private spite or malice. I do not think that this result would follow. It may be assumed that the Government will not improperly employ the Act to enable an individual to satisfy his private ends. In this case there is no evidence that the Collector has been prompted to make the acquisition by any indirect motive. The evidence shows that the Collector considered the matter carefully and found that there was no objection to the acquisition of the land in question provided the people concerned contributed the cost. The consideration pointed out by my learned brother that if on appeal the compensation is enhanced the Government would have to defray the extra amount from out of the public revenue is also in favour of the view that we are taking in this case."
There being thus two conflicting decisions of the same Court, the matter came up for consideration before a Full Bench in Suryanarayana v. Province of Madras (AIR 1945 Mad 394) which overruled the decision in Ponnaia's case and upheld that in Senga Naicken's case. This very point came up for consideration before the Supreme Court in the case of Smt. Soma-wanti (AIR 1963 SC 151) (supra). The question, it seems, was argued as one of first impression and de novo and Mudholkar, J., speaking for the majority, Subba Rao, J., (as he then was) dissenting, upheld the validity of the decision in Senga Naicken's case. It is worthwhile to quote the observations of the Supreme Court in para. 52 of the judgment-
"We would like to add that the view taken in Senga Naicken's case, ILR 50 Mad 308: (AIR 1927 Mad 245), has been followed by the various High Courts in India. On the basis of the correctness of that view the State Governments have been acquiring private properties all over the country by contributing only token amounts towards the cost of acquisition. Titles to many such properties would be unsettled if we were now to take, the view that 'partly at public expense' means substantially at public expense. Therefore, on the principle of stare decisis the view taken in Senga Naicken's case, ILR 50 Mad 308: (AIR 1927 Mad 245), should not be disturbed." and again--
"In our opinion 'part' does not necessarily mean a substantial part and that it will be open to the court in every case which comes up before it to examine whether the contribution made by the State satisfies the requirement of the law." It is, therefore, too late in the day to argue that a token contribution from out of the public funds will not conform to the requirement of the proviso to Section 6 (1). One rupee out of Rs. 54,000 will certainly be a part although not a substantial part.
11. Mr. Basudeva Prasad, however, pressed upon our attention the observation of the Supreme Court in Somawanti's case (AIR 1963 SC 151) (supra) to the following effect: (at p. 169):
"We would, however, guard ourselves against being understood to say that a token contribution by the State towards the cost of the acquisition will be sufficient compliance with the law in each and every case. Whether such contribution meets the requirements of the law would depend upon the facts of that case. Indeed, the fact that the Slate's contribution, is nominal may well indicate in particular circumstances that the action of the State was a colourable exercise of power."
Learned counsel wanted us to gather from this observation that a token contribution by the Government will itself be an indication of colourable or fraudulent exercise of power. I do not think this is what the Supreme Court has decided in the case. As I can understand the decision it is simple. If de hors the provisions of Section 6 (1) the exercise of power is a colourable one mainly because of the acquisition being purportedly for public purpose, although, in fact, it is for a private purpose or no purpose at all then the factor that the contribution from out of the State Exchequer may be merely token or negligible will add to the inference of mala fide exercise of power. Learned Advocate-General appearing for respondents 1 and 3 rightly pressed into service the decision of the Supreme Court in the case of Inderjit C. Parekh v. State of Gujarat (AIR 1975 SC 1182) wherein it has been laid down that contribution of only token by the Government towards the cost of acquisition would satisfy the requirement of proviso to Section 6 (1). The fact that the State's contribution is nominal may, however, well indicate in particular circumstances that the action of the State was a colourable exercise of power. The observation in AIR 1963 SC 151 (supra) has been interpreted as necessarily to be referring to the requirement of some law other than the proviso to Section 6 (1). Learned counsel for the petitioners argued that the Bench decision in AIR 1927 Mad 245 (ibid), which is sought to hold the field, ought not to be taken as a correct decision as it is an unreasoned one. It was submitted that in construing the word 'part' in the proviso the maxim 'de minimis non curat lex' (the law does not concern itself about trifles) ought to be called into aid and that a trifling payment should not be construed to mean a part of the compensation. It is futile to argue that the decision of Odgers and Madhavan Nair, JJ. in Senga Naicken's rase (AIR 1927 Mad 245) is wrong in law. As has already been stated earlier, the principle decided therein has got the seal of approval of the Supreme Court in numerous decisions. Apart from such futility, calling into aid of the aforesaid maxim is wholly unwarranted. While testing the provisions of the Act, learned counesl for the petitioners has taken the cue from the judgment of Lord Hatherley in the case of Chatterton (1878) 3 AC 483) (supra). As already observed earlier, that case concerned with the copyright Act and with the Dramatic Copyright Act. The question for consideration in that case was whether the word 'part' in those Acts would be read as particles and while discussing this point, the learned Lord observed that if the quantity taken by way of illustration or quotation or the like from published books and dramatic performances be neither substantial nor material, no wrong is done and no action can be brought. In that context, it was said--
"They are not intended to be repeated by others or to be used in such a way as a book may be used, but still the principle de minimis non curat lex applies to a supposed wrong in taking a part of dramatic works, as well as in reproducing a part of a book."
That apart, it is true that the courts of justice generally do not take trifling and immaterial infractions of ] aw into account; yet the use of the maxim is not appropriate when the extent of a power conferred or a liability imposed by the statute is a question of construction. Under the statutory provisions, specially in statutes for public and general welfare, the maxim salus populi suprema lex (regard for the public welfare is highest law) is more appropriate, for in construing such statutes full effect ought to be given to the obvious object; while due consideration is made to the individual, proper protection is also afforded to the public because in such cases a balance has always to be struck between the rights of the public and the convenience of an individual. There is, thus, no substance in either of the points urged on behalf of the petitioners.
12. It may be mentioned that learned counsel for the petitioners invited our attention to a large number of decisions to wit Heisnam Chonjon Singh v. Union Terirtory of Manipur (AIR 1968 Manipur 45), Shyam Behari v. State of Madhya Pradesh (AIR 1965 SC 427), Amarendra Nath v. State of West Bengal (1963) 67 OWN 6471, Dau Daval v. State of Uttar Pradesh (AIR 1966 All 237), Raja Ram Baru Ram v. State of Punjab (AIR 1970 Punj & Har 361), Rajendra Kumar Ruia v. Govt. of West Bengal (AIR 1952 Cal 573) and Secy, of State v. N. Gopala Aiyar (AIR 1930 Mad 798). The ratio of none of these cases militates against the view which I have taken on the questions raised in this case and decided above. I thus find no merit in this application which is accordingly dismissed. In the circumstances, there will be no order as to cost.
S. Ali Ahmed, J.
13. I agree.