Gulam Mustafa & Ors Vs. The State of
Maharashtra & Ors  INSC 220 (18 September 1975)
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 448 1977 SCR (1) 875 1976
SCC (1) 800
F 1977 SC1456 (6)
Hyderabad land Acquisition Act-Acquisition of
land for a village market-If a public purpose-Excess land sold to a housing
colony-If acquisition mala fide.
Certain lands belonging to the appellants
were compulsorily acquired under the Hyderabad Land Acquisition Act for running
a country fair or market (mondha). After the acquisition, the municipality
parcelled out the excess land and sold it for a housing colony. The High Court
dismissed the appellants' writ petition, in limine.
On appeal to this Court it was contended that
the acquisition was not for a public purpose and that it was mala fide.
Dismissing the appeal,
HELD: (1)(a) Providing a village market is an
obvious public purpose.
[876C-D] (b) A mondha is a country fair or
Market is defined in s. 2(20) of the
Hyderabad District Municipalities Act in wide terms and s. 72 of the said Act
enumerates the purposes for which property may be vested in a municipality.
This includes markets. It inexoorably follows from a joint reading of Ss. 2(20)
and 72(a) of the District Municipalities Act that the purpose of providing a
market for the townsfolk falls within the powers of the municipality. [876G-H]
(2)(a) Striking down any Act for mala fide exercise of power is a judicial
resered power exercised lethally, but rarely. The charge of mala fides against
public bodies and authorities is more easily made than made out. It is the last
refuge of a losing litigant. [876D] (b) What has to be established is mala fide
exercise of power by the State Government although the beneficiary is the
municipality. There is no evidence of malus animus in Government. [877B] (c)
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 declaration.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 675 of 1968.
From the judgment and order dated the 19th
January, 1967 of the Bombay High Court in S.C.A. No. 16 of 1967.
S. J. Deshpande and A. G. Ratnaparkhi, for
M. C. Bhandare and M. N. Shroff, for
respondent nos. 1, 2 and 4.
D. V. Patel, K. Laxmanrao and S.
Gopalakrishnan, for respondent no. 3 876 The Jugement of the Court was
delivered by KRISHNA IYER, J. Brevity will do no inequity in this appeal where
three points were urged but only one survives for serious scanning. The subject
matter is the validity of land acquisition proceedings whereby a Municipality
compulsorily purchased the appellant's land for the stated public purpose of
running a country fair or market (mondha) under the Hyderabad Land Acquisition
Act (for short, the Act) which is closely similar to the Land Acquisition Act,
1923 (Central Act). The first charge is that the High Court dismissed the Writ
Petition in limine. Seven years after the 1968 event, we cannot consider
sending back the case even if there be justice in the submission. We have
therefore heard counsel Shri Deshpande on his substantive grievances. The
second contention is that there is no 'public purpose' to support the
acquisition which is allegedly ultra a vires the Municipality's powers. We
disagree. Providing a village market is an obvious public purpose and a
municipal facility. The last plea which has been pressed strenuously is that
the acquisition exercise is bad being mala fide-an uphill task to make out
against a public body. Was this colourable exercise of power ? Striking down
any act for mala fide exercise of power is a judicial reserve power exercised
lethally, but rarely.
The charge of mala-fides against public
bodies and authorities is more easily made than made out. It is the last refuge
of a losing litigant. Even so, we will examine the merits of the contention
here from the point of view of the serious factors placed for our
Was this acquisition done colore official ?
The circumstances relied on may be examined from this standpoint. Section 5(3)
of the Act provides for declaration of the public purpose, like s. 6(3) of the
Central Act. This declaration was made in 1960 and covered at least 28 acres of
land belonging to the appellant. His counsel contends that there in no public
purpose mentioned in the notification because what is stated is 'government
There is no force in this terminological
deviation. The purpose has been set down as for a 'mondha' or 'country fair'
which is obviously a public purpose. So counsel shifted to another shade of the
same argument and state that 'mondha' is not a word known to law and has not
been defined anywhere and so such a purpose cannot be taken cognizance of by
the law. We cannot agree to the linguistic game masquerading as a legal point.
It is plain that a 'mondha' is a country fair or village market. 'Market' is
defined in s. 2(20) of the Hyderabad District Municipalities Act in wide terms,
and s. 72 of the said Act enumerates the purposes for which property may be
vested in a municipality.
This includes 'markets'. It inexorably
follows from a joint reading of ss. 2(20) and 72(a) that the purpose of
providing a market for the townsfolk falls within the powers of a municipality.
Failing here, counsel finally stressed that
in any case no market for a small municipal town requires 28 acres of land,
especially because the Master Plan prepared for the Municipality had allotted
877 only 15 acres for this purpose. it is not for the Court to investigate into
the area necessary for running a market.
Moreover there is no mala fides emerging from
this circumstance. What has to be established is mala fide exercise of power by
the State Government-the acquiring authority-although the beneficiary of the
acquisition is eventually the Municipality. There is no scintilla of evidence
suggestive of malus animus in Government.
At this state Shri Deshpande complained that
actually the Municipal Committee had sold away the excess land marking them out
into separate plots for a housing colony, 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 s. 5(3) declaration.
There is no merit in the appeal which is
dismissed without costs.
P.B.R. Appeal dismissed.