Sarabjit Singh etc. vs State of Himachal Pradesh etc.

T.U. Mehta, J.—The Petitioners herein have prayed for an appropriate writ for quashing the land acquisition Notification issued under Sections 4 and 6 of the Land Acquisition Act (hereinafter ref to as the Act), in the year 1966 on the ground that the land was acquired by the erstwhile State of Punjab under a misrepresentation that it was required for the public purpose of establishing a National Biological Research Laboratory. The case of the Petitioners is that in the year 1964, the Respondent No. 4 which is the Council of Scientific and Industrial Research Institute had mooted an idea to establish a National Biological Research Laboratory at a suitable place in India and, therefore, the Petitioners were approached by certain officials of the Government of Punjab to allow the Government to acquire the disputed land for that purpose. The Petitioners thought that the said acquisition would result in the development of the area where the disputed land is situate and as a result of this development they would ultimately gain because their remaining lands in that area would appreciate in value. According to the Petitioners, therefore, they agreed with the Government of Punjab to allow the disputed land to be acquired on payment of compensation of Rs. 21 lacs even though, according to the Petitioners, the market value of the lands to be acquired was much more than Rs. 50 lacs. The Petitioners stated that eventually they discovered some time before the month of March 1975 that no public purpose of establishing a National Biological Research Laboratory existed in fact, and that the Government had obtained their consent to the acquisition of the disputed land under a false representation. The Petitioners have, therefore, prayed, that the Notification u/s 4 and 6 of the Act be now quashed, and the Respondent No. 1, which is the State of Himachal, being the successor of the erstwhile State of Punjab, be directed to restore the lands to the Petitioners alongwith the damage caused to the Tea bushes which were planted in the acquired land. In the alternative, the Petitioners have prayed that the Respondent, State of Himachal Pradesh, be directed to appoint a suitable authority under the Act to assess the correct market value of compensation which the Petitioners would have been entitled to as on the date on which the notification u/s 4 was issued.

To state shortly the brief background which has given rise to this litigation, it is found that the question of establishing of a National Biological Research Laboratory was considered by the Respondent No. 4 at its meeting held in February 1960. Accordingly a proposal for the establishment of the said laboratory was included in the Third Five Year Plan of the Respondent No. 4 and was approved by the Planning Commission. The Biological Research Committee of the Respondent No. 4 then drafted a detailed plan containing the scope of work and organisation of the laboratory and also its estimated expenditure. Thereafter, about the location of the Laboratory, the Vice-President of Respondent No. 4 appointed a Committee consisting of four members to go into the question and to make suitable recommendation. This Committee held its first meeting on June 8, 1964, and was of the opinion that the Laboratory should not be located near a big city but at a place with congenial surroundings and where an area of 1,000 to 1,500 acres of land could be available with easy accessibility and availability of educational, medical and other facilities. This committee considered Kangra Valley in the Punjab, Ranikhet in U.P., Kalimpong in West Bengal and Munner in Kerala a, possible site for the location of the contemplated laboratory. Thereafter the concerned Governments of these states were requested by the Committee to intimate whether land to the extent of 1,000 to 1,500 acres could be made available free of cost where other facilities like water and power-supply, school, hospital and road/rail connection etc., could be provided. The committee received no reply from the Government of Uttar Pradesh and West Bengal. The Government of Kerala replied that the required extent of land and facilities were not available at Munnar but the said Government offered to make land measuring 1,000 acres and other facilities available free of cost near Nayyar Dam or Ponmudi in Trivandrum district. The Government of Punjab intimated the Committee that the land measuring 1,300 acres was available in the Kangra Valley at a distance of 1 to 3 miles from the town of Palampur and that this area was accessible by road and rail and other facilities like school and hospital were also available there. The Government of Punjab further informed the Committee that power facilities at that place could be easily arranged from Jogindernagar. The Committee was further informed by the Government of Punjab that the area in question was fairly flat and would not involve expenditure on levelling.

After getting this information from the respective Governments, the Committee met again on September 9, 1964, and considered the matter in the light of the above responses. The Committee then took into consideration the rain fall and temperature data of all the four areas including the two sites mentioned by the Kerala Government and after taking into consideration all these factors the Committee provisionally recommended the Kangra Valley site proposed by the Punjab Government as being "the most suitable site for the location of the Laboratory". The Committee, thereafter left to the Director General of the Respondent No. 4 Institute which is shortly referred as C.S.I.R.I. to negotiate about the acquisition of land etc., with the Punjab Government. It is further found that the said Director General of the Respondent No. 4 discussed the matter informally with the Chief Minister of the Punjab Government and the Chief Minister indicated to him that the land in question would be given free of cost. The Committee was of the opinion that the site proposed by the Punjab Government not only met all its requirements but was also suitable for "studying the full range of vegetation from the alpine to the tropical". All these facts are beyond dispute and are found from the Minutes of the 48th meeting of the Respondent No. 4 which took place on September 29, 1964. A copy of these minutes is found at Annexure R-4/A.

It is found that pursuant to the above move of the Respondent No. 4, and especially to the approach made by the Director General of Respondent No. 4 to the Chief Minister of Punjab, the Petitioners were approached by certain officials of the Punjab Government including the Collector, Kangra, for allowing the Government to acquire some land of the Petitioners for the purpose of establishing the above said laboratory. The Petitioners admittedly held about 2,200 acres of land in various areas in Tehsil Palampur in Kangra district. The case of the Petitioners is that when they came to know about the likely acquisition for the purpose of establishing the above referred Laboriatory they thought that if they could part with a portion of the land in their possession the rest of their land situate in this area was likely to appreciate in value and the whole district would otherwise be benefited on account of the establishment of this Laboratory. They, therefore, held discussions with the various officials of the Government of Punjab and represented that the value of the land proposed to be acquired together with the structures standing thereon exceeded Rs. 60 lacs in view of the previous awards given by the concerned Land Acquisition Officer. However, on further negotiations the Petitioners agreed that if the Government of Punjab consented to exclude certain area measuring 13 acres, they would be willing to part with an area measuring 12, 396 Kanals and 1 marla on receipt of compensation of Rs. 21 lacs. According to the Petitioners, they agreed to this amount of compensation even though, strictly according to the market value prevailing at that time, the land in question could have fetched about 50 lacs of rupees to them. This is evident by reference to letters found at Annexure ''A'' dated 5-12-1964 and Annexure ''C dated March 4, 1966. It should be mentioned here that before the letter Anne-xure ''C was written, the Government of Punjab had already issued Notification u/s 4 of the Act on 4-1-1966 which stated that the land situate in the locality mentioned in that notification was "likely to be required to be taken by the Government at public expense, for a public purpose, namely, establishment of National Biological Research Institute". Thereafter by their letter dated April 5, 1966, addressed to the Governor of Punjab the Petitioners agreed to the apportionment of the amount of compensation of Rs. 21 lacs amongst themselves and enclosed with the said letter an agreement regarding the amount payable to each of the Petitioners (vide Annexure ''D''). Thereafter, by another letter dated April 15, 1966, the Petitioners intimated to the Governor of Punjab that the compensation amount of Rs. 21 lacs would include the compensation payable to the tenants who were already on the land proposed to be acquired (vide Annexure ''E'').

Thereafter on April 25, 1966, the Government of Punjab issued a notification u/s 6 making a declaration that the disputed land which was specified alongwith that notification "was required to be taken by the Government at the public expense for a public purpose, namely, for the setting up of a National Biological Research Institute at Palampur, District Kangra". Thereafter on May 28, 1966, notice u/s 9 of the Act was issued by the Collector Kangra calling upon all the persons having interest in the land to state the nature of their respective interest and the amount and particulars of their claims for compensation. The Petitioners put up their claim for an amount of Rs. 21 lacs as previously agreed. Then on July 8, 1966, an award for compensation of an amount of Rs. 21 lacs was made in favour of the Petitioners. This is how the disputed land completely vested in the Government under the provisions of the Act free of all encumberances.

Thereafter by virtue of the provisions of the Punjab Re-organisation Act, 1966, certain territories comprised in Kangra district of the erstwhile State of Punjab were added to the Union Territory of Himachal Pradesh and thereafter on January 25, 1971 by virtue of the State of Himachal Pradesh Act, 1970, the State of Himachal Pradesh came into existence. Thus, so far as the facts of this case are concerned, the State of Himachal Pradesh is the successor State of the erstwhile State of Punjab.

It is found from the record of the case that though the disputed land was acquired by the Government of Punjab for the public purpose of establishing a National Biological Laboratory, the said scheme of establishing that Laboratory did not eventually fructify. The Petitioners have, therefore, contended in paragraph 14 of their petition that a few months back (i.e. a. few month before the month of March 1975 when this petition was filed) they learnt that "there was never any definite plan of establishing a National Biological Research Institute as had been represented" by the Government of Punjab and that there was no public purpose for which the aforesaid notifications u/s 4 and 6 of the Act could have been issued. The case of the Petitioners is that it is now revealed from the record of the case that the establishment of the National Biological Research Institute had never taken a final shape and though the Government of Punjab had no reason to believe on April 25, 1966, when the declaration u/s 6 was issued, that the said National Biological Research Institute was to be established it had wrongly made that declaration, and wrongly acquired the land in dispute under mis-representation of facts to the Petitioners. According to the Petitioners, they would have never agreed to part with the acquired land for the paltry amount of Rs. 21 lacs had they known that the scheme for establishing the National Biological Research Institute was not finalised on the date of notification u/s 6. According to the Petitioners, therefore, the public purpose for which this land is said to have been acquired never existed in fact, and, therefore, the declaration of acquisition as contemplated by Section 6 of the Act was a colourable exercise of power by the Government of Punjab. Since, according to the Petitioners, they came to know about this colourable exercise of power only a few months before this petition was filed, appropriate writ setting aside the notifications u/s 4 and 6 should be issued and the land in question should be restored back to them along with damages. During the course of arguments, however, Shri Singhvi- the learned Counsel of the Petitioners, contended that the Petitioners would rest satisfied if the Court preferred to grant a limited relief directing the Respondent State of Himachal Pradesh to assess proper amount of compensation as on the date of the notification issued u/s 4 of the Act.

Initially the Respondent No. 1, which is the State of Himachal Pradesh, and Respondent No. 6 which is the State of Punjab, filed a joint reply resisting this petition. Subsequently, the writ petition was heard on merits for about three days but on January 2, 1976, the learned Advocate-General who till then appeared for the States of Himachal Pradesh and Punjab, made a statement that he was not appearing for the State of Punjab. In view of this statement, this Court passed the following order:

Throughout the hearing so far, the impression given has been that he (Advocate-General) appeared for the State of Punjab. ...It is unfortunate that this impression was permitted to prevail during the hearing of the case so far. However, on a perusal of the record it now appears that there is no material on the record to show that the Respondent Nos. 3 and 6 have been served with notice of this writ petition. We are compelled therefore to direct fresh issue of notice to those Respondents. ...The notice intended for the Respondent No. 6 will also state that the State of Punjab is requested to forward to the Registry of this Court the entire original record pertaining to the acquisition of the land questioned in the writ petition by January 13, 1976.

However, pursuant to the above order, the State of Punjab has not produced any record. On August 30, 1966, the State of Himachal Pradesh (Respondent No. 1) produced one supplementary return through its Deputy Secretary one Miss Bimla Bhagat. Along with this supplementary return five documents are produced as found at R.l/A, R.l/B, R. 1/C, R.l/D and R.l/E. These documents show that as late as the month of November, 1966, the Respondent No. 4 pursued the matter of taking the acquired land on gift for the purpose of establishing a National Biological Research Laboratory. Apart from these documents the Respondent No. 1, State of Himachal Pradesh, has not produced any record to show under what circumstances the Government of Punjab took the decision of issuing notification u/s 6 of the Act making a declaration that the acquired land was needed for a public purpose. After the resumption of the hearing of this writ early in the month of January, 1977 the learned Counsel for the Petitioners made a good deal of grievance about the non-production of the relevant record by the respective States of Punjab and Himachal Pradesh and pointed out that the documents produced at Annexure R.l/A to R.l/E and especially the one produced at Annexure R.l/D clearly states that some record must have been in the possession of the State of Himachal Pradesh. Thereupon the learned Advocate General presented an application dated January 6, 1977, with the request to take in the record an affidavit of Miss Bimla Bhagat, Deputy Secretary to the Government of Himachal Pradesh stating that in spite of best efforts continued for many days and enquiry from various departments no more record relating to the acquisition of the land in question had been discovered or recovered by the Government. This affidavit further points out to a possibility of the record having been "destroyed in the fire which gutted the Kennedy House at Simla where the office of the Director of Health Services, Himachal Pradesh, was located.

From the above facts it appears that on the question of production of the record, the Governments of Punjab and Himachal Pradesh are not in harmony and the Respondent No. 1 (State of Himachal Pradesh) has not been able to explain satisfactorily where the relevant record lies. Under these circumstances we are called upon to decide this write petition only on the strength of the documents which are produced in the record of this case.

Before proceeding with the merits of the contentions raised by the parties, it would be proper to note the reply filed by the Respondent No. 4�the Council of Scientific & Industrial Research Institute, New Delhi, because, the reply which is filed on behalf of the States of Himachal Pradesh and Punjab do not throw sufficient light on what actually happened at or about the date on which the notification u/s 6 was issued. The reply of the Respondent No. 4 states that the proposal for the establishment of a National Biological Laboratory was included in the Third Five-Year Plan of this Respondent and the same was approved by the Planning Commission. According to this Respondent, a request was made to the Punjab Government to intimate whether the land to the extent of 1,000 to 1,500 acres could be made availabe free of cost along with other facilities and the Government of Punjab responded by stating that the land measuring 1,300 acres was available in the Kangra Valley at a distance of 1 to 3 miles from the town of Palampur and that the said land had all necessary facilities. The Respondent has further stated that the Punjab Government had accordingly taken steps for the acquisition of the disputed land. In paragraph 3 of its reply, this Respondent has stated that there was a definite plan to establish a Biological Research Laboratory which was approved by its governing body and the Planning Commission. In paragraph 5 of its reply, the Respondent No. 4 has referred to the approval of the disputed site by its Committee, and in paragraph 6 it is mentioned that a detailed plan including the estimated expenditure in respect of the Laboratory was worked out at Rs. 314 lacs during the Third and Fourth Five Year Plan periods, as detailed in Annexure R. 4/A. Thereafter in paragraph 8 this Respondent has pointed out when and under what circumstances the idea of establishing a National Biological Laboratory was dropped. The averments contained in this paragraph are very important and, therefore, they are quoted as under:

That the contents of para No. 20 as such are not admitted. It may be submitted that the Fourth Plan Committee appointed by the Vice-President of the Respondent No. 4 as a result of the recommendations made by the Governing Body of the society, at its meeting held in November, 1966, recommended that unless there was compelling reasons, no new institute should be set up during the Fourth plan period. The Committee did not recommend the setting up of the National Biological Laboratory, but suggested that biological research be encouraged in the existing centres. In order to ascertain how best Respondent No. 4 Society could extend support to modern biological research, a questionnaire was issued to 187 Biological Societies, Biologists and Biological Institutions in the country. The replies received were analysed and placed before the Conference of Biological Scientists held on 18-4-1970. After considering the matter in the light of the replies received from the aforesaid Biological. Institutions and Biologists, it was recommended by the Conference that it was not desireable to have a separate National Biological Laboratory and that what was needed was to have special research stations. It was also recommended to setup a Biological Research Board with a view to supporting Biological Research. These recommendations were considered by the Board of Scientific and Industrial Research of Respondent No. 4 in its meeting held on 23-7-1970 which recommended that the proposed Board of Biological Research should be set up under the Committee on Science & Technology (C.O.S.T.) Government of India. As such the Respondent No. 4 has now no proposal for the setting up of a National Biological Laboratory, nor has any proposal for the same included in its Fifth Five-Year Plan programme.

It is evident from this return of the Respondent No. 4 that the idea of establishing a National Biological Laboratory at the site of the acquired land was finally given up as late as the year 1970, and till then, that idea continued to remain in active consideration of the concerned authorities. It is in the light of these facts that we have now to consider whether when the Government of Punjab issued notification u/s 6 of the Act it did so in colourable exercise of power or not.

In support of their contention that the idea of establishing the above said Laboratory at the site of the acquired land never took a concrete shape, the Petitioners have put reliance upon the Minutes of the Respondent No. 4 in its 49th meeting held on May 6, 1965, and the subsequent 53rd meeting held on July 15, 1967. The Petitioners have also referred to some Lok Sabha proceedings dated June 28, 1967, December 13, 1968, and May 9, 1969, the photostat copies where of have been produced in the record of this case. We shall, therefore, shortly refer to all these documents with a view to appreciating the totality of the facts relating to this writ petition.

The proceedings of the 49th meeting of the Governing Body of the Respondent No. 4 which was held on May 6, 1965, note the following:

With the permission of the Chairman Dr. Bhabha, raised the question of the National Biological Laboratory and in this connection referred to the criteria laid down by the 3rd Reviewing Committee for the Location of research institutes. He said that Biology had grown and expanded into varied disciplines for each of which it was necessary to have separate laboratories. This view he said has also expressed by the Biological Research Committee�(Contd. on page 10)�at its last meeting. He therefore concluded that there could not be a single National Biological Laboratory while he had no objection to Biological Laboratory being set up in the Kangra Valley. It was necessary to define the scope of this Laboratory.

Several Members took part in the discussion, some opposing the location of the Laboratory at Kangra Valley and other supporting it. The discussion was inconclusive. The Chairman pointed out that this was not on the agenda and suggested that if necessary with the permission of the Chair this item may be taken up in the next meeting of the Governing Body when the Vice-President would also be present.

The meeting adjourned with a vote of thanks to the Chair.

These Minutes which were recorded in the year 1965 do not show that the idea of establishing a National Biological Laboratory was given up by Respondent No. 4. It, however, does show that that idea had not taken any final shape till the date of that meeting in 1965. The minutes of the 53rd Meeting which was held on July 15, 1967, show the following:

In the background of these general conclusions the committee considers some of the proposals included in the Rs. 153 crores plan and made following recommendations:

(a) New Institutes:

Unless there are compelling reasons no new institutes should be set up during the Fourth Plan.

The Committee does not recommend the setting up of a National Biological Laboratory at present but suggest that Biological research should be encouraged in the centers.

The proceedings of the Lok Sabha dated June 28, 1967 show that the Minister concerned informed the House that no proposal of establishing more National Laboratories was under consideration of the Government. The proceedings of Lok Sabha dated December 13,1968, show that the Minister-in-charge informed the House that the Governing Body of the Council of Scientific and Industrial Research at its meeting held on 25th November, 1967, while considering the recommendations of the Forth Five-Year Plan Committee decided that the detailed consideration may be given to the functions of the proposed National Biological Laboratory and also its location. It further shows that the enquiries were made to the various State Governments including Kerala a few years back and offers of land were received and that the matter was still under consideration. Thus these proceedings show that even as late as the end of the year 1968 the idea of establishment of the National Biological Laboratory was not totally given up and it was still under consideration. The Lok Sabha proceedings dated May 9, 1969, show that the Minister concerned informed the House that there was a proposal for calling the meeting of leading Biologists of the country for the purpose of considering whether a National Biological Laboratory should be established or not. This answer gives credence to the above quoted paragraph 8 of the reply filed on behalf of the Respondent No. 4 and shows that it was only after the proposed conference of the leading Biologists was held that it was decided in the year 1970 that the National Biological Laboratory should not be established.

However, the contention of the learned Counsel of the Petitioners is that even if it is found that the idea of establishing a National Biological Laboratory was not finally given up till the year 1970 the fact remains that the establishment of this Laboratory had not taken final shape and no final decision was taken up by the concerned authorities to establish this Laboratory at the site of the acquired land when the notification u/s 6 was issued by the Government of Punjab in the month of April, 1966. Under the circumstances, it was sub mitted, it cannot be said that any public purpose of establishing this Laboratory actually existed in the month of April, 1966, and if no such public purpose actually existed, it could not be said that the acquired land was needed for that purpose. In this connection Dr. Singhvi pointed out the difference in the terminology of Sections 4 and 6 of the Act and contended that while Section 4 contemplates an intended public purpose, Section 6 contemplates a public purpose which has taken final shape and, therefore, so long as that public purpose had not taken final shape the Government of Punjab was not justified in issuing a declaration contemplated by Section 6 of the Act. According to Dr. Singhvi, therefore, this declaration is found to have been issued without the condition precedent being in existence and that being so the issuance of that declaration was a colourable exercise of power. He pointed out to the decisions given by the Supreme Court in Rohtas Industries Vs. S.D. Agarwal and Others, in support of his proposition that when a condition precedent to the exercise of power is not satisfied the High Court acting under Article 226 of the Constitution can strike down the action taken by the concerned authority. He further relied upon the observation made by the Supreme Court in Smt. Somavanti and Others Vs. The State of Punjab and Others, to the effect that though the provisions of Sub-sections (1) and (3) of Section 6 of the Act make the Government the sole Judge whether there is in fact a need and whether the purpose for which there is that need is a public purpose, and preclude a Court from ascertaining whether either of these ingredients of the declaration existed, there is one recognized exception to this rule, and that exception is that if there is a colourable exercise of power the declaration made u/s 6 of the Act will be open to challenge at the instance of the aggrieved party. Air Singhvi contended that since in this case it is proved beyond doubt that no public purpose of establishing a National Biological Laboratory at the site of the acquired land actually existed on the date of the notification u/s 6, the acquisition of the land in question is a colourable exercise of power and, therefore, the declaration u/s 6 would not have the character of finality and would be justiciable by this Court.

The Respondents have raised the plea that this petition is not maintainable on the ground of laches. We shall, however, consider this plea at a subsequent stage. For the present it would be proper to consider how far the question about the existence of the need of a particular land for a public purpose is justiciable and is open to judicial review under Article 226 of the Constitution.

While considering this question the most important thing to be borne in mind is that the satisfaction about the need of a particular land for a public purpose as contemplated by Section 6 of the Act is the subjective satisfaction of the appropriate Government. This satisfaction of the appropriate Government comes after an enquiry contemplated by Section 5-A of the Act is made. According to Section 6 of the Act when the appropriate Government is satisfied after considering the report, if any, u/s 5-A, Sub-section (2) that a particular land is needed for the public purpose or for a Company a declaration shall be made to that effect under the signatures of Secretary to such Government or by some officer duly authorised to certify its orders. According to Sub-section (3) of this section the declaration so made shall be "conclusive evidence" that the land is needed for a public purpose or for a Company as the case may be. Thus while Sub-section (1) of Section 6 contemplates the subjective satisfaction of the appropriate Government, Sub-section (3) it hereof makes the declaration of that subjective satisfaction ''conclusive evidence'' of the fact that the land is needed for a public purpose. The total effect of both these provisions of Section 6 is that the State Government is made the sole Judge ''of the question whether a particular piece of land is needed for public purpose.

When the relationship between the subject matter of power which is to be exercised and the purpose for which it is to be exercised is placed by the lagislature within the sole discretion of the competent authority which is to exercise that power, the question which arises to be considered is: to what extent the Court should exercise its power of judicial review to find out whether the prescribed purpose has in fact been pursued. In other words the question is: what is the scope of judicial review when the formulation of power is made dependent upon the subjective satisfaction of a statutory authority. The question as formulated, without factual back-ground, does admit of a very wide canvas of debate, but the ambit of the debate gets greatly narrowed down if it is required to be considered in context of peculiar facts of each case. As a matter of broad principle the Courts have held that where the competent authority is empowered to take a prescribed course of action, if satisfied that it is necessary in "public interest", they (Courts) cannot go behind the statement of such competent authority that it was satisfied that the statutory condition for the exercise of power in fact existed vide [Re Beek and Politzers Application (1948) 2 K.B. 399 and Land Realization Co. v. Postmaster General (1950) Ch. 435. In this connection the Courts in India have often referred to the following observations of Viscount Maugham in Liversidge v. Anderson (1942) A.C. 206

In my opinion, the well-known presumption omnia esse rite act a applies to this order, and, accordingly, assuming the order to be proved or admitted, it must be taken prima facie, that is until the country is proved, to have been properly made and that the requisite as to the belief of the Secretary of State was complied with.

In Jaichand Lall Sethia Vs. State of West Bengal and Others, the Supreme Court considered the question of satisfaction of the Government under Rule 30 of the Defence of India Rules, 1962. The contention which was raised was that the High Court should have called upon the State Government to produce the file concerning the detention of the Appellant in order to determine for itself whether a Chief Minister had sufficient materials before him for satisfying himself as to the necessity for the detention of the Appellant. This contention was rejected by the Supreme Court with the following observations:

The satisfaction of the Government which justifies the order of detention under Rule 30 is a subjective satisfaction. A Court cannot normally enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If, therefore, an authenticated order of detention is on its face regular and in conformity with the language of Rule 30 it is not ordinarily open to a Court to enter into an investigation about the sufficiency of the material on which the order of detention is based.

In this decision the Court has further observed that such orders could, however, be challenged only if it is found that the State Government never applied its mind to the matter or that the authorities of the State Government acted mala fide. After saying this, the Court has observed as under:

In a normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy be accepted by the Court as establishing that the necessary condition was fulfilled. In other words, in a normal case the existence of such recital in a duly authenticated order that the State Government was satisfied will, in the absence of any evidence to the contrary, be accepted by the Court as establishing that the State Government was so satisfied. If the order of detention itself suffers from any lacuna it is open to a Court in a case to call for an affidavit from the Chief Minister or other Minister concerned or to call for the relevant file from the State Government in order to satisfy itself as to the accuracy of the recital made in the order of detention.

It would not be out of place to observe here that the Judges are undoubtedly legal experts, but indeed, not the experts in evaluation of public policies and socio-economic necessities. It is for these reasons that the Courts in India have consistently taken the view that the cases where the law stipulates subjective satisfaction of a competent authority for the purpose of exercising a particular power, the Courts could not be invited to investigate the sufficiency of the material or the reasonableness of the grounds on which satisfaction is reached. An early decision taking this view would be found in AIR 1943 75 (Federal Court) where the Judicial Committee observed as under:

It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenue to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.

The only exceptions to this rule, which are carved out by the Courts are the cases of fraud, dishonesty or corrupt practice and the cases where the impugned action is in violation of statutory provisions which act as condition precedent to the said action. In The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, as well as in Rohtas Industries Vs. S.D. Agarwal and Others, the Supreme Court found as a matter of fact that the circumstances which formed the fundamental condition precedent for the formation of opinion u/s 237(b) of the Companies Act, 1956, never existed, and hence, there could not have been any real existence of the opinion in question. In such cases the Courts can interfere with the action in question even though the satisfaction visualised is subjective. These decision of the Supreme Court do not in any manner seek to detract from the basic principle that in cases of subjective satisfactions of the statutory authorities, the Courts should not try to evaluate the sufficiency of materials which are said to have brought about the satisfaction of such authorities. In fact these decisions proceed on the factual finding that the circumstances which were required for the formation of opinion being totally absent, there was no scope for the existence of any opinion of the concerned authorities. It is true that in these two cases the Supreme Court went behind the formation of opinion of the competent authority, but that was only for the limited purpose of knowing whether the opinion actually existed, and not for the purpose of weighing or appreciating the bundle of facts which played their part in the formation of the opinion.

If this aspect of the legal position is borne in mind the simple and limited question which arises to be considered in this case is whether, when the notification u/s 6 was issued, the appropriate Govt. (which is, in this case, the Government of erstwhile State of Punjab) was in fact satisfied that the disputed land was needed for a "public purpose". If this satisfaction was reached on relevant materials which, in the opinion of the Court, are insufficient, it would not be open to this Court to hold that the said satisfaction could not have been reached for the simple reason that the said satisfaction is subjective in character and relates to the consideration of a public purpose, the judgment about which can be given only by the concerned authority and not by the Court. However, it should be clarified that if the satisfaction was reached on the basis of extraneous or wholly irrelevant considerations or if there was total absence of relevant materials on which satisfaction could have been reached, this Court can strike down the action on the ground that here was no satisfaction in reality and hence the declaration about the need for a public purpose was a fraud on the statutory provisions contained in Section 6 of the Act. Thus want of real satisfaction results in showing the want of real "need for a public purpose".

It is at this stage that Sub-section (3) of Section 6 of the Act comes up for our consideration. This sub-section provides for a rule of evidence and says that the declaration issued under Sub-section (1) should be treated as ''''conclusive evidence" that the land is needed for a public purpose. The meaning of the expression "conclusive evidence" was considered by the Supreme Court in Smt. Somavanti and Others Vs. The State of Punjab and Others, . In that case a distinction was sought to be made at the Bar between the effect of the expressions "conclusive proof" and "conclusive evidence" but the Supreme Court rejected the contention in the following words:

In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression ''conclusive proof where the object is to make a fact non-justiciable. But the legislature may use some other expression such as ''conclusive evidence'' for achieving the same result. There is thus no difference between the effect of the expression ''conclusive evidence'' from that of ''conclusive proof the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.

Thus according to the Supreme Court the aim of the legislature in making the declaration issued u/s 6 of the Act of conclusive evidence that the land in question is needed for a public purpose, is to make that fact non-justiciable. The Supreme Court has further held in this case that this conclusiveness is not merely regarding the fact that the Government is satisfied but also with regard to the question that the land is needed for a public purpose, or is needed for a Company, as the case may be. Another contention which was raised before the Supreme Court in this case was that the question whether "public purpose" as contemplated by Section 6 of the Act exists or not is justiciable question in view of the position that it is jurisdictional fact. Even this contention was rejected by the Supreme Court in the following words:

It is the existence of the need for a public purpose which gives jurisdiction to the Government to make a declaration u/s 6(1) and makes it the sole judge whether there is in fact a need and whether the purpose for which there is that need is a public purpose. The provisions of Sub-section (3) preclude a Court from ascertaining whether either of these ingredients of the declaration exists.

Summing up the legal position arising out of the rule of evidence found in Sub-section (3) of Section 6, the Supreme Court has finally concluded as under:

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is bing acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. 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 relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final.

This view has been further confirmed by the Supreme Court in the subsequent decision given in Raja Anand Brahma Shah Vs. State of Uttar Pradesh and Others, . That was also a case covered by the Land Acquisition Act and it was contended before the Courts that the manufacture of cement being for profit will not amount to a public purpose.

The Supreme Court refused to go into this question holding that the declaration of the Government u/s 6(1) of the Act will be final subject to only one exception, namely, that there is a colourable exercise of power. In Jage Ram and Others Vs. State of Haryana and Others, which was also a case under the Land Acquisition Act, the Supreme Court is found to have made the following observations which are pertinent to the facts of the present case:

...the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge.

Thus the ratio of the above referred decision of the S.C. can be stated as:

(1) the declaration of the Government u/s 6(1) of the Act is conclusive and final for the purpose of showing that the acquired land was needed for a public purpose.

(2) The question whether a piece of land covered by the said declaration was in fact needed for a public purpose or not, is not justiciable.

(3) These, above stated, two rules about the finality and non-justiciability of the public purpose in question are subject to an exception, namely, the cases where the declaration in question is made under a colourable exercise of power.

It is thus clear that whatever be the width and ambit of judicial review contemplated by the decisions of the Supreme Court in Barium Chemicals Ltd. and an Ors. v. Co. Law Board and Ors. and Rohtas Industries Ltd. v. S.D. Agarwal and Anr. (both supra), the legal impact of the conclusive rule of evidence contemplated by Sub-section (3) of Section 6 is that the question as regards the existence of a public purpose becomes justiciable only if the Court finds that the declaration u/s 6 is ''made either for a collateral purpose or under a colourable exercise of power.

The pertinent question, therefore, is: what amounts to a colourable exercise of power. When a statutory power is exercised by an authority under the guise and colour of some legal authority, but with a purpose which is extraneous to the statutory purpose its exercise becomes colourable in the sense that it is not warranted by law and yet it purports to take the colour of legality. Such an exercise of power amounts to fraud on law and results in abuse of legal provisions.

The counsel for the Respondent contended that the expression "colourable exercise of power" necessarily implies bad faith, and so long as it is not shown that the impugned declaration was made u/s 6 mala fide or in bad faith, it cannot be held that the said declaration was the result of a colourable exercise of power. This contention is not acceptable because discretionary power can be abused in bad faith as well as in good faith. The main difference between the exercise of power in bad faith and the one in good faith is that while exercise of power in the former case is a ground of invalidity sui generis, in the latter case the impugned action vitiates the action only on proof of some special ground, such as, exercise of jurisdiction outside the ambit of the statute. The former is the case of fraud in fact, while the latter is the case of fraud in law. Therefore, when power is exercised for an unauthorised purpose, it is generally immaterial whether its repository was exercising that power in good faith or in bad faith. Thus when the authority concerned takes an action which does not confirm to the purpose upon which the validity of his action is dependent, the said action can be successfully challenged even though the same is taken in good faith. In this connection we may profitably quote the following observations of Shelate, J. in Barium Chemicals Ltd. (supra):

When a power is exercised for a purpose or with an intention beyond the scope of or is not justified by the instrument creating it, it would be a case of fraud on power, though no corrupt motive or bargain is imputed.

Then proceeding further his Lordship has observed as under:

Thus apart from an authority acting in bad faith or from corrupt motives it may also be possible to show that "an act of the public body, though performed in good faith and without any taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon that body and, therefore, inoperative. It is difficult to suggest any act which would be ultra vires under this head though performed bona fide, per Warrington, L.J. in Short v. Poole Corporation 1926 Ch. 66 at p. 90.

Thus there would be a colourable exercise of power even if the action in question is taken in good faith.

Another contention which was raised on behalf of the Respondents was that the concept of colourable exercise of power applies only to the legislative enactments and not to executive actions. This contention has no merit because an exercise of power can be colourable irrespective of the authority, which exercises the same. When the Legislature exercises power in a colourable manner it is colourable exercise of legislative power and when an executive authority exercises power in a colourable manner it becomes colourable exercise of executive power. In fact the above referred decisions of the Supreme Court in Smt. Somawanti''s case and other cases arc the decisions relating to the colourable exercise of executive power. Therefore, this contention has no merit.

Now coming to the facts of the case, in order to determine whether in this case the declaration u/s 6 was the result of colourable exercise of power and, therefore, a fraud on the statute, we have to bear some very important facts of this case in mind. We have already stated some of these facts in the foregoing portion of this judgment. To recapitulate these facts it is evident from Annexure R. 4/A which is a copy of the proceedings of the meeting of the Respondent No. 4 dated September 29, 1964, that the Committee appointed by the Respondent No. 4 for the purpose of fixing the location of a National Biological Research Laboratory had provisionally recommended the site of the acquired land as the most suitable one for the location of the Laboratory. As a result of this the Director General of Respondent No. 4 negotiated the matter further with the Government of Punjab and informally discussed the same with the Chief Minister of Punjab Government. This discussion was relating to the acquisition of the disputed land. Now when the Government of Punjab came to know that the matter of selection of a proper site for establishing this Laboratory was under such a serious consideration, and that the land should be acquired for the purpose of offering the same free of cost to Respondent No. 4, can it be said that the said Government had no materials before it to find that the land was needed for a public purpose? Can it be said that under these circumstances the Government of Punjab should have waited till the question of establishing the laboratory was completely finalized? It was for the Government of Punjab to be satisfied on the question whether the need to acquire the land actually existed at a particular point of time or not. The contention of the learned Counsel for the Petitioners was that there was no material before the Punjab Government to show that a final decision for establishing a Laboratory at a particular place was taken by the concerned authorities. That may be so but that is not sufficient for concluding, in view of the facts which were already before the Government, that the Government acted either for a collateral purpose or without any relevant materials before it. Since it was a question of policy it was for the Government to decide whether the real need existed at the relevant time or not.

In this connection it is further interesting to note that as late as 1-11-1966 when some of the territories of erstwhile State of Punjab were transferred to Himachal Pradesh which was Union territory, one Dr. N.K. Panikkar, Director of National Institute of Oceanography (which appears to be one of the branch activities of Respondent No. 4) wrote the letter found at Annexure R. 1/A to Mrs. Serla Grewal, Secretary, Medical and Health Departments, Punjab Government, sending to her a draft agreement for the purpose of gifting the acquired land to Respondent No. 4. This draft agreement is found at Annexure R. 1/E and this letter of Mr. Panikkar as well as the draft agreement were sent on November 14, 1966, by the Deputy Secretary, Health and Local Government Department, Punjab Government, to the Secretary, Health and Medical Department of the Government of Himachal Pradesh, as per Annexure R/l/B. This draft agreement was sent to the Himachal Pradesh Government by the Punjab Government because at that time the territory in question was transferred to the Himachal Pradesh Government. The contents of the draft agreement are noteworthy as they contain the following recitals:

Whereas the Council has decided to set up a National Biological Laboratory at Palampur in Kangra district in the Union territory of Himachal Pradesh for promoting Biological Research in India;

And whereas the Government has acquired a piece of land comprising of the Holta Tea Estate, Palampur measuring 12,396 kanals and 1 marla more particularly described and delineated in the maps appended hereto and specified in the Schedule hereto annexed (hereinafter referred to as the said land) and has become an absolute owner thereof;

And whereas the Government has agreed to give the said land to the Council free of cost and by way of gift for the purpose of setting up and running the Laboratory above mentioned;

And whereas the Council has agreed to accept the said land and do all other expenditure on the construction of buildings, internal roads, internal electrification and water supply as well as to bear the recurring charges for setting up the said National Biological Laboratory.

This portion of the draft agreement conclusively shows that at least till the date of 1-11-1966 when this agreement was initially forwarded to the Punjab Government the idea of establishing a National Biological Laboratory at the site of the acquired land was very much active. If this idea was given up one should not have expected a responsible officer like Mr. Panikkar to have fraudulently induced the Government of Punjab to transfer the land by way of gift for the purpose of constructing the said Laboratory. It should be recalled here that the notification u/s 6 was already issued much before this letter was written, that is, on 25-4-1966. It is further found that thereafter, on 25-7-1967, the Secretary (Medical) to the Government of Himachal Pradesh wrote one letter to the Secretary to the Government of India (Department of Health) as found at Annexure R. 1/C. This letter was written to request the Central Government to take necessary steps for the transfer of the acquired land by way of gift to Respondent No. 4 because Himachal Pradesh at that time being Union Territory could not validly execute a deed of transfer under Rule 281 G.F.R., 1963, without the previous sanction of the Central Government. This letter contains the following statement which is very significant:

The National Institute of Oceanography (Council of Scientific and Industrial Research Institute) has been pressing hard for the transfer of the land for setting up a Biological Institute at Palampur since their project is mainly held up for want of transfer of the land and execution of the bond of agreement by this Government.

This letter thus furnishes further evidence to show that as late as 25-7-1967 the idea of establishing a National Biological Laboratory at Palampur was hotely pursued. A further reference to Annexure R. 1/D which is a copy of the D.O. letter written by the Chief Minister of Himachal Pradesh Government to Shri Y.B. Chavan, the then Home Minister of the Central Government, shows that even in the month of November, 1967, the Chief Minister pressingly requested Shri Chavan to see to it that the acquired land was transferred to the Respondent No. 4 by way of gift so that the work of establishing a National Biological Laboratory could be expedited.

The question is whether on these facts it is possible to say that the declaration that the disputed land was needed for a public purpose was baseless and without foundation. This declaration would amount to a colourable exercise of power only if it can be found that the satisfaction about the existence of public purpose was not in fact reached or that if such satisfaction was in fact reached, the facts which were in possession of the Government at the relevant time were such that no rational human being could have been satisfied that the land was needed for a public purpose. That the satisfaction was in fact reached cannot be disputed having regard to the above stated facts and circumstances of the case. The emphasis of the Petitioners, however, is on the fact that it is clear from the record of the case that on the, date when the notification u/s 6 was issued no decision to establish a National Biological Laboratory at Palampur was taken and hence it must follow that the statement of declaration that the disputed land was needed for a public purpose was patently false. It was contended that if the public purpose in question was in fact not in existence the satisfaction about its existence cannot be taken as real, and that being so, the exercise of power must be treated as colourable. This contention is obviously based on the objective appraisal of facts as seen at present in retrospect. It is after searching the record of Respondent No. 4 that we can now conclude that on the date of the notification u/s 6 the proposal for establishing a National Laboratory at Palampur had not taken a final shape. The question, however, is not to what conclusion we can arrive at after considering the evidence recorded in the case, but rather the question is whether on the strength of the material which the Government possessed at the relevant time, was it impossible for a rational man to be satisfied that the land was needed for a public purpose? If at the relevant time the Government of Punjab found that the establishment of a National Laboratory at Palampur was likely to be immensely helpful to the development of that area that there was a real possibility of the establishment of that Laboratory at that place if it (Government) was in a position to offer instantly the required land free of cost, and that if a swift and efficient action in the matter was not taken the possible advantage was likely to be slipped out of hand in view of other competing claims, can it be said that the said Government had no rational basis to be satisfied about the existence of the need for a public purpose?

The Government of Punjab, be it noted, is not shown to have had any knowledge, at the time when the notification u/s 6 was issued, that the proposal to establish a National Laboratory at Palampur was shelved. There is nothing in the record to show that the proceedings of the 49th and 53rd meetings of the Governing Body of the Respondent No. 4 held respectively on 6-5-1965 and 15-7-1967 were within the knowledge of the Government of Punjab. In fact the record of the case shows, as stated above, that this proposal was under serious considration till at least the month of November 1966 when a very responsible officer of Respondent No. 4 entered into correspondence with the Government about the draft agreement of gift. The facts of the case, therefore, show beyond any shadow of doubt that even the Respondent No. 4 created an impression in the mind of the Government as late as the month of November, 1966, that the land in dispute was needed for the establishment of a National Biological Laboratory. Surely, the Government of Punjab was not supposed to know the internal working of the policy matters relating to the affairs of Respondent No. 4. All that it knew was that the proposal for the establishment of a National Biological Laboratory was under serious consideration of the concerned authorities, that a Committee specially established for that purpose had gathered materials from different States for the purpose of selecting a suitable site for the said Laboratory, that the said Committee had shown preference for a site at Palampur and had requested the Chief Minister of the Government to acquire suitable land in that area with a view to get the land free of cost and that if the same was not immediately done other rival claims were likely to get upper hand and the State of Punjab was likely to lose the advantage which was within sight. Can it be said that the possession of the knowledge of these facts by the Government of Punjab was such that no rational person can conclude therefrom that the land was not needed for the purpose of establishing a National Biological Laboratory? When a question relating to a public policy about the welfare of the State was involved, the Government of Punjab could not be expected to defer the acquisition proceeding till a firm and final decision of establishing that Laboratory at Palampur was taken, for the fact that the Committee established by the Respondent No. 4 requested the Chief Minister of Punjab to take steps for acquisition clearly shows that the Respondent ''No. 4 was in no mood to wait for the lengthy process of acquisition [proceedings to get the land free of cost. Therefore, if the Government of Punjab had preferred not to be a stickler of formalities, land acted with dash, dynamism and political foresight in the ''interest of public and acquired the disputed land with a view to preempt the claims of other States (as the learned Counsel for the Petitioners put it) there was nothing wrong in the eyes of law because the law postulates the satisfaction as to the existence of the need for a public purpose from the stand point of an executive authority and not from the stand point of a Judge who weighs every problem in the golden scales of legal niceties

The counsel for the, Petitioners contended that the action of issuing a declaration u/s 6 is contemplated in law only when the public purpose in question takes a final shape, and, therefore, till the Government was satisfied that a firm and final decision to establish a National Biological Laboratory at Palampur was taken, notification u/s 6 could not have been legally issued. This contention was elaborated by pointing out the distinction between the wordings of Section 4 and Section 6 of the Act. It was contended that while action u/s 4 can be taken whenever it "appears" to the appropriate Government that land in any locality "is needed" or "is likely to be needed" for a public purpose, the one u/s 6 can be taken when the Government concerned is finally "satisfied" that the land in question is actually "needed" for the said purpose. The argument was that while Section 4 justifies action even in cases of mere likelihood, Section 6 justifies action only when there is some thing more than a mere likelihood, that is, when a mere possibility of the existence of the public purpose has culminated into a reality. It is no doubt true that while u/s 4 it is sufficient if it appears to the Government that the land is "likely to be needed" for a public purpose, u/s 6 the Government must be satisfied that the land is "needed" for the said purpose. Section 6, therefore, contemplates a stage when a mere ''likelihood'' of need has ripened into the "actual" need. The point which should, however, be noted is that the emphasis which Section 6 puts is on the "need" and not on the "public purpose". In other words when action u/s 6 is to be taken, it is the "need" and not the "public purpose" which should fructify into a reality. This, of course, does not mean that the "need" which has fructified into reality should not be for a public purpose. What it means is that even if the public purpose has remained a possibility and has not assumed a final shape if the Government concerned is satisfied that for that possible public purpose there is real "need" in interest of public, declaration u/s 6 can be legitimately made. Whether such a "need" is real or not is to be decided only by those who are in control of public policy and not by the Court for the simple reason that the Courts cannot judge the total requirements of a public policy. Of course, it need not be emphasised that if a public purpose is totally absent, there cannot be any need for the same, and hence, in total absence of a public purpose, the action u/s 6 would be a colourable exercise of power. But so far as the facts of the instant case are concerned it is not possible to say that there was a total absence of the public purpose in question on the date on which the notification u/s 6 was issued.

To conclude, therefore, we do not find it possible to accept the Petitioners'' contention that the declaration made in this case by way of notification u/s 6 of the Act was a colourable exercise of power.

It was contended on behalf of the Petitioners that the principle of promisory estoppel applies in this case inasmuch-as the State of Punjab acquired the land on the promise that it was required for the establishment of a National Biological Laboratory. It is difficult to conceive how this principle would help the Petitioners. In view of the fact that the land in fact was really needed for the establishment of the said Laboratory, as already discussed above, we see no point in this contention.

The Respondents have resisted this petition on the ground of laches and we do find that the Respondents are on firmer ground on this question. It should be noted that the acquisition in this case is challenged after a long period of nine years. The Petitioners are the residents of the same locality. Initially when the acquisition was started they had ample opportunity to enquire into the facts end to raise objections against this acquisition u/s 5A of the Act. They have not done so. After the land was actually acquired and possession thereof was taken they allowed many years to pass by. It is evident that during this long course of nine years there was no activity to establish the said National Biological Laboratory on the acquired land. On the contrary, after it was clear to the Government of Himachal Pradesh that the whole idea of establishing this Laboratory was given up they started to give away this land to Army as well as Himachal Pradesh University. Thereafter the Himachal Pradesh University raised some construction and invested a good deal of amount there. Till then the Petitioners sat silent. In view of the fact that the Petitioners are the residents of the same locality and are using the Estate for the purpose of Tea Plantation it is not possible to believe that for long nine years they had no reason to suspect that the land was not being utilized for the purpose for which it was taken. In paragraph 14 of their petition, the Petitioners have made the following allegations to show how they came to know that the land was acquired for a public purpose which, in their opinion, never existed. The averments contained in this paragraph are as under:

The Petitioners state that a few months back, the Petitioners learnt that there was never any definite plan of establishing a National Biological Research Institute as had been represented to the Petitioners by the Government of Punjab and there was no public purpose for which the aforesaid notification under Sections 4 and 6 of the Act could have been issued.

The averments contained in this paragraph are obviously very vague as they do not state in details as to how and in what manner they gathered the required information about the want of public purpose. In their rejoinder, paragrah 2, the Petitioners have stated as under:

Regarding the question of delay it is stated that Only in the last week of December, 1974 the Petitioners became aware that the acquisition of land in dispute was a colourable exercise of statutory powers and constituted a fraud upon the power conferred on the State Government by the Land Acquisition Act. The Petitioners state that in or about the middle of May, 1974 Pritam Ghand one of the employees of the first Petitioner informed the first Petitioner that he had heard at the Tehsil Office that a part of the disputed land was going to be handed over to the Military Authorities and another part was being used for an Indo-German Agricultutal Project. The said Pritam Chand also told the first Petitioner that he had heard that there was no idea of setting up a National Biological Research Institute. On getting this information the Petitioners got a notice dated May 21, 1974 issued by their counsel Shri J.S. Arora to the State of Himachal Pradesh. The first Petitioner also began making further enquiries from various sources including the Tehsil Office and the offices of Respondents Nos. 1 and 4. The information gathered by the first Petitioner indicated that in fact there was no difinite plan or decision by the Governing Body of C.S.I.R. to set up the said Institute on the acquired land or any other place in Palampur and this idea had never crystallised. Thereafter the Petitioners got another notice dated October 22, 1974 issued to the State of Himachal Pradesh.

Even the averments contained in this paragraph are not sufficient to convince the Court that the Petitioners came to know about the alleged colourable exercise of power in the last week of December, 1974. No affidavit of Shri Pritam Chand who is referred in this paragraph is filed. Under the circumstances we are not convinced that the Petitioners came to know about the alleged want of public purpose as late as the month of December, 1974. This petition, therefore, clearly suffers from the vice of laches as in the meanwhile the Petitioners have allowed the State Government to enjoy the property as owner.

During the course of arguments much grievance was made on behalf of the Petitioners regarding the manner in which the State has produced some selected documents in the case and has failed to produce the rest of the file. It is no doubt true that the States of Punjab and Himachal Pradesh have not dealt with the matter of production of documents fairly. As already observed above, initially both the States filed a joint reply to this petition. Subsequently when the question of production of documents was considered by the Court the learned Advocate-General, as already stated above, came out with the discovery that he did not represent the State of Punjab. Then on behalf of the State of Himachal Pradesh a supplementary reply was filed by its Deputy Secretary, Miss Bimla Bhagat. In this reply she has made the following averments:

That I have gone through the relevant record of the above-mentioned Writ Petition which shows that complete record especially correspondence proceeding of the acquisition case of the land, which has been acquired by the Punjab Government at the instance of the National Institute of Oceanography (Council of Scientific and Industrial Research), has not been transferred to Himachal Pradesh Government after the re-organization of the composite Punjab State, and they are not now willing to send the remaining record or to produce it before the Hon''ble Court for obvious reasons.

(Paragraph 1).

Alongwith this reply she has produced the above referred documents which are at Annexures R. 1/A to R 1/E. A reference to the contents of these documents show that the State of Himachal Pradesh has received some papers from the Government of Punjab at the time of re-organization but these papers arc not produced for the perusal of this Court. In the belated affidavit filed on 6-1-1977 on behalf of the State of Himachal Pradesh during the course of actual hearing, and after much grievance was made on behalf of the Petitioners regarding the non-production of documents it is very vaguely stated that the relevant documents might have been destroyed in the fire which gutted Kennedy House. This affidavit is not worth anything because it does not make any definite statement that the documents were gutted in the fire nor does it give any date of the said fire. It does not disclose in whose possession these documents were before the Kennedy House was gutted in fire. All these facts show that neither the State of Himachal Pradesh nor the State of Punjab has taken the matter seriously. The facts further show that even if they have taken the matter seriously, they have shown very scant respect to the Court proceedings. Such a situation is highly disturbing and undesirable because the Court does not expect the States to behave like ordinary litigants on such simple questions as production of relevant documents. Be that as it may, we have got to decide the matter as it appears from the recorded evidence and since we find that there is no reason to discard the documents, found at Ex. R. 1/A to R. 1/E as unreliable documents and since at the proper stage the Petitioners have not moved this Court to compel the Respondent No. 1 Government of Himachal Pradesh to produce the file from which these Annexures R. 1/A to R. 1/E have been produced, we do not find any reason to draw an adverse inference that had the State produced the main file from which these documents are produced the result of the case would have been different.

Since the petition fails on merits, the same is dismissed and the rule is discharged. There is no order as to costs.