S.N. Bhattacharjee, J.
1. This appeal is directed against the judgment and order dated 25-5-98 passed by a single Judge of this Court whereby the writ petition No. 8025(W) of 1998 was dismissed.
2. By a notification dated 22-8-1961, Government of West Bengal acquired a land measuring more or less 151.18 acres for a public purpose, namely, the construction of Mourigram-Dankuni Link Project of South Eastern Railways After completion of the project, Southern Railway surrendered the surplus land of about 78 acres which were not utilised in the project and handed over the same to the Animal Resource Development Department (ARDD in short), State of West Bengal, which leased out a considerable portion of the said land measuring about 46.42 acres duly registered on 9-6-95 in favour of a private sector enterprise namely, Fregerio Conserve Allana Limited of Mumbai (hereinafter referred to as the said Company) for construction of a food processing unit including an abattoir at Mourigram for a period of 99 years.
3. On 13-4-98 Indian Vegetarian Congress and his President as petitioner Nos. 1 and 2 respectively along with the heirs of the erstwhile land owner, petitioner Nos. 3 to 6, whose lands were acquired for the purpose of the railway project jointly filed a writ petition before the ld. single Judge challenging the said lease for 99 years created by the Government in favour of the said Company praying for the writs as contained in a, b, c, d of the prayer portion of paragraph 23 of the writ petition :
'A writ in the nature of Mandamus do issue commanding the Respondents to forbear from using or utilising the acquired lands in question other than for a public purpose and to be used only for the purpose for which it was taken and not otherwise.'
'A writ in the nature of Mandamus do issue directing the Respondents to give bank the lands in question to land-owners or to sell by public auction, and/or to use except for the public purpose for which it was acquired.'
'A writ in the nature of prohibition do issue prohibiting the respondents to allow user of the lands for the purpose of slaughter house and/or Abattoir or by Fregerio Conserve Allana or for any private purpose.'
'A writ in the nature of certiorari do issue commanding the respondents to produce all records including the alleged agreement between Fregerio Conserve Allana Limited and Land Revenue Department, Howrah. Govt. of West Bengal violating all norms of environmental Pollution, Provision W.B. Act. XXII of 1950 and Acquisition proceedings of the Lands in question and other relevant statutes and to certify them and on being so certified to quash the same.'
4. According to the writ petitioners, (a) the lands in question acquired for a particular public purpose and for a specific project of railways under the provisions of Land Acquisition Act, 1894 cannot be used or utilised for a different purpose for which the lands were not acquired;
(b) The State Government has no authority or power to transfer the lands in question to a private concern for purposes other than mentioned in the notification instead of giving back possession of the lands erstwhile owners;
(c) That the purported setting up of the slaughter house/abattoir on the lands in question is in violation of Arts. 48, 48A, 51A(i) of the Constitution of India. The West Bengal Industrial Development Corporation Limited and M/s. Fregerio Conserve Allana Ltd. who were not impleaded in the writ petition came to be added as respondent Nos. 4 and 5 respectively. The respondents contested the writ application by filing affidavit-in-opposition. The ld. trial Judge after having considered the facts and circumstances of the case framed the following three issues for his determination :--
(a) Whether the writ petitioner Nos. 5 to 6 can as a matter of right get back the land which was acquired from the predecessor-in-interest or not;
(b) Whether a property which has been vested under the Acquisition Act, 1894 can be dealt with and/or used by the State Government otherwise than public purpose or not;
(c) Whether granting of lease of a vested land to a private company for the purpose of industrial development and for earning foreign exchange is public purpose or not.
As regards the issue No. (a) the ld. trial Judge held that once the property had been vested in the Government under Section 17 free from encumbrances, neither the previous owners nor their successor in interest could question the dealing and disposal of the property by the State Government. In coming to the decision the ld. trial Judge relied upon the decisions reported in : [1976]1SCR875 , : (1997)2SCC627 . As to the issue No. (b) the ld. trial Judge is of the view that there is no obligation attached to the vested land either under thei law or otherwise that State shall utilise and use the land for public purpose all times to come and that the language of Art. 298 of the Constitution, empowers the Government to dispose of and deal with the vested land. As regards the issue No. (c) the ld. Judge has observed that the concept of public purpose has undergone a sea change and relying upon the decisions reported in : AIR1961MP140 the ld. trial Judge has held that if in the said company may have to undertake the activity of slaughtering animals, the same cannot be termed as being without public purpose and further that the position (provision) of Art. 48 of the Constitution of India is wholly inapplicable since the Directive Principle of State Policy cannot be enforced when State action is in accordance with law.
5. Being aggrieved by the aforesaid decisions the petitioners have come up with this appeal. Mr. Mitra while assailing the judgment and order passed by the ld. trial Judge has argued the ld. trial Judge ought to have followed the decision reported in : AIR1997SC2703 and ought to have held that the surplus lands should have been sold in public auction instead of creating a lease in favour of private company, the respondent No. 5, in violation of Section 3(f) of Land Acquisition Act, 1894. He has further argued that the ld. trial Judge erred in law in relying upon the decision reported in : AIR1961MP140 inasmuch as the same is prior to amendment in L.A. Act 1984 (Act 31 of 1962) by insertion of Section 44B in the L.A. Act, 1894 and, therefore, the acquisition for a private company for any purpose other than purpose laid down in Section 40(1)(a) of the Act cannot be said to be a public purpose any more.
6. Mr. Mitra appearing on behalf of the appellants has further argued that the ld. trial Judge has failed to appreciate that the respondents 1 and 2 after having acquired a vast tract of land for a public purpose illegally and arbitrarily leased out the surplus land for establishment of attattoir project for the benefit of private company which, at any rate is not a public purpose and that such act of the respondents is in violation of the Articles 48 and 51(i) and (g) of the Constitution of India. According to him, a surplus land should have been either given back to the appellant Nos. 3 to 6, the heirs of the erstwhile owner or should have been sold in auction. He relies upon the State of Kerala v. M. Bhaskaran Pillaih reported in : AIR1997SC2703 , State of Bihar v. Kamaswar Singh, : [1952]1SCR889 , Gadadhar Ghosh v. State of West Bengal, reported in 67 CWN 460 and : AIR1997SC2703 : (1997 AIR SCW 2673).
7. Mr. Mukherjee appearing for the respondent No. 4 has argued that the appellant nos. 3 to 6 have no locus standi to file this writ petition having no right, title and interest in respect of the land under the lease as after the acquisition dated 21-10-61 the State has become the absolute owner of the land and the same under no circumstances can revert back to the erstwhile owners or their successors except in virtue of a deed inter vivos. He has cited in : [1957]1SCR1 Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, : [1957]1SCR1 , Gulam Mustafa v. State of Maharashtra reported in : [1976]1SCR875 and : 1961CriLJ573 .
8. Mr. Pal appearing for the respondent No. 5 has contended that the argument of the appellants that the State cannot grant lease of a surplus land to private party for private purpose is misconceived inasmuch as that after the possession of the land consequent upon acquisition being taken by the Government, the Government becomes the absolute owner of the property free from all encumbrances and it can deal with as any other owner and such dealing is protected under Article 298 of the Constitution of India. According to him the Govt. can grant lease its land and by reason of Section 3 of the Government Grants Act, 1895 it partakes of the nature of law and that once the original acquisition is valid and the title has vested in the State, it is no concern of the original owner how the State uses the excess land. On this point he has cited several rulings reported in : [1957]1SCR1 , : (1997)9SCC544 , : [1955]1SCR1311 , AIR 1970 Mys 185, : AIR1986SC872 , : [1976]1SCR875 , : (1997)2SCC627 , : [1977]2SCR666 , AIR 1971 P & H 406, : AIR1997SC2703 . He has further argued that in any event grant of lease of non-income yielding land for valuable monetary considerations particularly when the company is export-oriented providing for employment to a large number of unemployed youths should be deemed to be a public purpose when judged against the socio-economic back-ground of the State. He has cited decisions reported in : [1990]2SCR533 and : AIR1978Pat136 ; : [1963]2SCR774 .
9. It is to be noted that the writ petitioner no. 1 is a non-political charitable society for the propagation of Ahimsa and Vegetarianism in the country interested to propagate for encouraging people to resort to Vegetarian way of living. The representations made by it before the different authorities dated 2-6-95, 12-1,2-95, 24-4-97, 28-10-97, 7-2-98 were all directed to discourage the establishment of slaughtering house and to reconsider the proposal therefor highlighting the necessity for preservation of wild life and prevention of diminishing cattle resources. Nowhere in the aforesaid correspondences the authority or power of the State in dealing with the surplus land has been rated as arbitrary or illegal for not returning the same to the heirs of the original owner or investing money by auction sale in consonance with Directive Principle of State Policy. Be that as it may, the first point is whether the surplus land can revert back to the respondents 3 to 6 or whether the respondents 3 to 6 as heirs of the original owners can claim any right, title or interest in the surplus land in question by, invoking the writ jurisdiction of this court thereby challenging the dealing of surplus land in another manner by the State as unconstitutional. Secondly, whether the petitioner nos. 1 and 2 have locus standi to challenge the action of the Government in respect of dealing with the land only because its mission for propagating vegetarianism has received a severe jolt by the abattoir project which is going to be established by the impugned lease.
In 67 Cal WN 460 the question whether establishment of a slaughter house can be public purpose came up for consideration before His Lordship and it was held,
'It is no argument that a State cannot establish a slaughter house or a drug factory, because the State legislative list does not contain a specific entry for establishment of drug factory or slaughter house. A modern State is no longer a directive or a police State, pre-concerned with maintenance of peace and order. It has assumed the role of a social service welfare State. There is no reason why in the absence of specific legislation, such a State cannot establish a slaughter house, in modern lines, to ensure supply of good protein food to its people and utilise animal glands and blood in the preparation of medicines vital to the life of its people.'
In State of Kerala v. M. Bhaskaran Pillai reported in : AIR1997SC2703 Their Lordships held at page 2704 (of AIR):
'In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefitted by getting a higher values.'
10. This ruling was relied upon by the ld, counsel Mr. Mitra for the purpose of showing that a surplus land should be sold to public auction provided the surplus land could not be used for any other public purpose by the Government. In this case it was categorically held that the surplus land cannot be sold to the erstwhile owner but pointed' out that public auction is one of the modes of disposing of the surplus land provided it is not utilised for any other public purpose. In State of Bihar v. Kamashwar Singh, : [1952]1SCR889 it was held that the question of public purpose is justiciable provided there is material on record to show that Government acted blindly or in mala fide manner. In Smt. Somawanti v. State of Punjab reported in : [1963]2SCR774 majority of Their Lordships held, at page 170 :
'It is always open to the State to fix priorities amongst public utilities of different kinds, bearing in mind the needs of the State, the existing facilities and other relevant factors. It is for the State Govt. to say which particular industry may be regarded as beneficial to the public and to decide that its establishment would serve a public purpose. No question or discrimination would, therefore, arise merely by reason of the fact that Government has declared that the establishment of a particular industry is a public purpose.'
11. In State of Punjab v. Sadhuram reported in : (1997)9SCC544 Their Lordships held that consequent upon the passing of the award under Section 11 and possession taken of the land, by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stood extinguished and the Government became absolute owner of the property free from all encumbrances. Thereby, no one has nor claimed any right, tile and interest in respect of the acquired land. In Gulam Mustafa v. State of Maharashtra reported in : [1976]1SCR875 the Municipal Committee had sold away the excess land marking them out into separate plots for a housing colony. Their Lordships held at page 449 :
'Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the Section 5(3) declaration.'
12. From the decisions discussed above it is evident that the appellant Nos. 3 to 6 claiming as heirs of the erstwhile owner cannot claim any right, title and interest in the surplus land validly acquired after having gone through the process of acquisition and that surplus land cannot be given back or reverted to the appellants/petitioners. It is also evident that the surplus land in question need not be sold in auction when the State has declared to utilise the land by leasing out the same for 99 years in favour of the said Company, the respondent No. 5. The next question is whether the ld. trial Judge was justified in holding that the impugned lease in favour of the respondent no. 5 for establishment of a slaughter house and for food processing is a public purpose regard being had to the role of the State in changing social context. In A. Ghosh's Laws of Compulsory Acquisition and Compensation in India, 6th Edition, page 74 which is considered by both the sides as authority on subject has dealt with the connotation of the term public purpose :
'There is no definition of 'public purpose' given in the Act, nor any limitation regarding what is likely to prove useful to the public; both matters are left to the absolute discretion of the local Govt. It is not competent for any Court to assume to itself the jurisdiction to impose restriction on this discretion by holding that at an enquiry under Section 40, the person whose land was intended to be acquired should have opportunity to appear and object and it was held that such a course is contrary to the policy of the Act and that the Government is the sole judge as to whether there was any public purpose (h).
When in an interpretation clause it is stated that a certain 'includes' so and so, the meaning is that the term retains its ordinary meaning and the clause enlarges the meaning of the term and makes it include matters which the ordinary meaning would not include (i).
So it follows that what the legislature intended by using the word 'includes' is that, besides the ordinary meaning of the expression 'public purpose' whatever that may be, other purposes for the benefit of the public may be included, Provision for village site is included in the term 'public purpose'.
It is not possible to define what a public purpose is, it has not a rigid meaning. It is elastic. Its concept varies with the time, the State of the society and its needs, (j). The inclusive definition of public purpose in Section 3(f) not being compendious, is not useful in ascertaining the ambit of that expression. Broadly speaking the expression public purpose would include a purpose in which the general' interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Public purpose is bound to vary with times and the prevailing conditions in a given locality and therefore it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose, (k). The provision of housesite for poor people is a public purpose for it benefits a large class of people and not one or two individuals. When the primary object is personal gain whether that be of a private individual or of a company the public benefit resulting from the action of the person or the company is too remote and the purpose cannot be said to be a public purpose, (1)'.
13. Mr. Pal has laboured hard to establish that such project was under the active contemplation of the State Government for which purpose various foreign expertise on the subject was consulted for preparing a feasibility report on Mourigram abattoir project and also consulted Australian Development Assistance Bureau and thereafter the State Government decided to approach the private sector to avail of the technical expertise of the private sector to implement the said Mourigram abattoir project and for that purpose approached/contracted various private sector enterprises including in particular the Allana Group of Bombay an expert in the field of processed foods based on Horticulture, animal husbandry, marine products and other agricultural raw materials. In paragraph 33 of the affidavit-in-reply the respondent No. 5 at page 106 of the paper book, has averred that the project would be the first large scale ultra-modern integrated food processing project in the State of West Bengal utilising raw materials available from within and adjacent States. It is further ascertain that is a 100% foreign exchange oriented project which would held to set up ancillary industries in the field of food products to support the Food Processing Industry and generate direct employment of 400 persons. In paragraph 34 respondent no. 5 has also stated that since the time of taking over possession by virtue of the lease the respondent has failed a huge sum of money on the project in tune of more than 20 crores and total number of more than 500 workers of various discipline have been engaged by the applicant through two contractors. He has also argued that the learned trial Judge has rightly held that the project would help economic development of the State and as such project is a public purpose.
We are, however, of the opinion that this Court is not at all required to be satisfied whether a surplus land has been utilised for a public purpose. After acquisition of the land in accordance with the procedure established by law a surplus land has vested in the State free from all encumbrances. Article 298 empowers the State to carry on any trade or business and make contracts for any purpose. Such powers being executive power of the State, the exercise of such powers must be subject to part III of the Constitution. Thus in making contracts with private parties the State cannot choose to exclude persons by discrimination in contravention of Article 14 (Erusion Equipment v. State of West Bengal, : [1975]2SCR674 ).
In the writ petition no mala fide nor any discrimination has been pleaded by the writ petitioners. That being the position, the proprietary right of the Government enables it to enter into contracts with private persons for disposal of the property irrespective of the purpose of such acquisition or disposition subject only to the condition of compliance with the relevant provisions of the Constitution. In Articles 48, 48A and 51A cannot operate as inhibitions in the matter of dealing with the acquired land by the State as mentioned above not only on the ground that those provisions are not enforceable by writs and have been inserted in the Constitution with a view to striving towards excellence.
We, therefore, do not find any infirmities in the Judgment passed by the Ld. Single Judge. The appeal being devoid of any merit is dismissed but in the facts and circumstances of the case without any order as to costs.
S.B. Sinha, J.
14. Although I agree with the judgment proposed to be passed by me learned brother but I would like to add a few words of mine.
15. The appellant Nos. 1 and 2 are outsiders. Their complaint appears to be that no slaughter house should be set up whereas the appellant Nos. 3 to 6 who claimed themselves to be heirs and legal representatives of the original owners of the lands in question had joined them in the writ application. The writ application, therefore, was not maintainable on the ground of multifariousness of cause of action.
16. So far as the appellant Nos. 3 to 6 are concerned, they have no legal right to obtain back possession of the lands in question, in view of the provisions contained in Section 16 read with Section 48 of the Land Acquisition Act. It is evident that once the land is acquired for a public purpose and possession thereof is taken, the same vests absolutely in the State free from all encumbrances and such acquisition cannot be withdrawn. In that situation, even if a part of the land becomes surplus as the case herein, it is for the State to deal with the same. In a given case it is possible but there cannot be any doubt whatsoever that it can also deal with the same treating the lands to be its own.
17. In M. Bhaskaran Pillai : AIR1997SC2703 (supra) no law has been laid down that in all cases the land should be sold by auction. In any event, such a course of action could be directed by the court had the agreement entered into by and between the State and the respondent No. 5 had been questioned but, the same had not been done. In absence of any challenge to the agreement entered into by and between the State and the Respondent No. 5 wherein the West Bengal Industrial Development Corporation Limited is also interested, no direction to that effect could be given. It is now a well settled principles of law that even a void order is required to be set aside.
18. In State of Punjab v. Gurdev Singh reported in : (1992)ILLJ283SC , the law has been laid down in the following term at page 2221:--
'If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1956) AC 736 at p. 769 Lord Redcliffe observed :
An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. Apropos to this principle, Prof. Wade states : the principle must be equally true even where the brand of invalidity is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see : Administrative Law 6th Ed. P. 352). Prof. Wade sums up these principles : The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse tp quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another.'
19. In the instant case, the appellants have not questioned the settlements made in favour of the respondents No. 5 and 6 they have no locus standi, and existence of any legal right in-themselves and corresponding legal duties in the respondents to obtain the relief sought for. Furthermore, the respondent No. 5 has admittedly set up an industry for processing of food articles, the said respondents had spent huge amount and its products are meant only for export which, in turn, would earn valuable foreign exchange for the country. The appellants, thus, have no locus standi to question the said agreement as they have failed to establish a legal right in themselves nor have they been able to show as to in what way are they affected by reason of the said agreement.
20. As they have no locus standi to maintain this writ application, the judgment of the learned trial Judge must be upheld.