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JUDGMENT 1999 Supp(4) SCR 216 The Judgment of the Court was delivered by S.B. MAJMUDAR, J. Leave granted.

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

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

(1) for construction of some work by Appellant no.l; and (2) that such work is likely to prove useful to the public.

In this connection, Section 41 (5) becomes relevant. It reads as follows:-

"where the acquisition is for the construction of any other work, the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work."

When the acquisition is for the company for construction of some work as laid down by Section 40 (l)(b), the company concerned has to enter into an agreement with the appropriate Government. As required by Section 41 (5), the company has to satisfy the appropriate Government about the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work. A conjoint reading of Sections 40 (I) (b) and 41 (5), leaves no room for doubt that the construction of such work for the company must be of such nature that it should be perennially and directly useful to the public and should not be of a sporadic or of a temporary nature. In other words, it should be permanently useful to the public for all times to come and the public can directly use that work constructed by the company as and when occasion arises. Such work has to be finished within the time schedule laid down by Section 41 (5) and conditions on which the work has to be executed and maintained are also to be laid down. Maintenance of such work by the company for supporting the acquisition in question necessarily means maintenance on a permanent basis. Learned counsel for Respondent no. 1 contended that providing for a passage for a decorated elephant carrying the idol of the deity followed by the procession for devotees only once in a year at time of festival and for which purpose the land in question has to be required for not more than an hour every year, cannot amount to any need for construction of such work, which has to prove permanently useful to the public for all the year round or even for an indefinite period in future.

One aspect of the matter which stares in the face has to be kept in view. The procession accompanying the elephant carrying the idol of the deity, may require an appropriate passage for reaching the destination. That need may not be a continuous need as such. A festival may take place once in a year. However, for laying down such a passage if any construction intervenes and has to be demolished it cannot be said that such a requirement is of a sporadic nature or could be met by requisitioning the premises from time to time every year. It is easy to visualise that once the passage is cleared by demolishing the shop for allowing the procession along with the elephant to pass over the said land in a given year, next year when the occasion arises the same shop, if permitted to be re- constructed in the meantime, will have again to be demolished. That would create an impossible situation not beneficial to anyone. For such a purpose, therefore, even though the requirement may be repeated every year and may be even for one hour in the month of March each year, the need for keeping such a passage open would be a perennial need and obviously will be of a permanent nature. Such requirement cannot be met by merely requisitioning the premises from time to time every year but the land over which the passage has to be carved out has to be kept open throughout the year and, therefore, must vest in the authorities by following the procedure of acquisition, if legally permissible. It is not possible to agree with the contention of learned counsel for the Respondent no, 1 that such a need is a temporary need which would, if at all, call for requisitioning the land from time to time instead of resorting to the procedure of acquisition.

We may now proceed to consider the legality of the impugned acquisition. In our view, on the peculiar facts of this case, basic requirements of Section 40 sub-section l(b) of the Act are not met at all. The reason is obvious. The site plan placed before us by both sides, and on which there is no dispute, shows that, the main road over which the procession has to proceed on spot is on the northern side. The respondent no. l's disputed land is situated on the southern side of the main road. There is a fence put up by the respondent over her land and leaving the compound land the respondent has pat up a residential house in one corner of her land .and there is a row of shops built up by her facing the main road towards the north just touching the main road on the Northern side. The last shop touching the main road is constructed on the disputed land which is sought to be acquired. The destination of the procession is on further southern side of the respondent land. For reaching that destination where the procession has to end and the idol has to be taken down from the elephant's back for carrying out the religious ceremony, the procession has necessarily to go through the open land adjoining the respondent's compound land. The respondent's teamed counsel, on instruction, made it clear that the respondent will have no objection in allowing the procession along with the elephant to go through the open land in her compound for approaching the southern side and for reaching the destination. For that purpose, instead of cutting across her last shop in the row, the procession can divert its route by five to ten feet on further right hand side while going towards South and can go through her compound land for reaching the destination. This little diversion of the road may save her shop without in any way hindering the procession for reaching the destination. In our view, the said stand of the respondent is quite fair. In fact, such an alternative route could have been suggested before the acquiring authorities. However, as procedure of Section 5A for the Act was dispensed with, the acquiring authorities got no opportunity to consider the alternative route suggested by her. It is obvious that such an alternative route would have satisfied the requirements underlying the acquisition proceedings for ensuring a convenient passage for the procession along with the elephant. Such procession could have easily utilised such alternative route without disturbing and cutting across the respondent's existing shop on spot. When we put this to the learned senior counsel for the appellants, he stated that on principle there may not have been any objection on this aspect but for the fact that astrofogers consulted by the appellant temple have advised that the route of the procession cannot be changed and it is only the old route which is a sanctified route. Now it is easy to visualise that this stand of the appellant clearly shows that the so called need for having the passage for the movement of the elephant and the procession only through the acquired land after demolishing Respondent no. 1's shop is not a genuine need of the temple or for that matter of the members of the public, who are the devotees and who would join in the procession every year. It is merely the sentimental approach of the temple authorities, solely depending upon the astrologers information which was made the sole basis for supporting the acquisition in question. It is easy to visualise that different astrologers opinions can be contradictory even on given facts. That can certainly not be treated to be a genuine need for public when the suitable passage for movement of elephant and the procession can be easily obtained on spot without disturbing or demolishing the shop. A little diversion of the route cannot, therefore, be held to be an impermissible possibility nor can the insistence by the astrologers not to divert the route can be taken to be a genuine need for construction of the road only by cutting across the intervening shop of the respondent so as to justify acquisition proceedings under Section 40(1)(b) of the Act. On the facts of the present case, therefore, there is no escape from the conclusion that the so-called need for having a passage only through the land on which the respondent's structure stands was not a genuine and felt need for construction of the road for the use of the public.