State of Punjab Vs. Gurdial Singh
& Ors [1979] INSC 220 (25 October 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1980 AIR 319 1980 SCR (1)1071 1980
SCC (2) 471
CITATOR INFO:
RF 1981 SC 818 (62) D 1984 SC1020 (8) R 1985
SC1622 (26) RF 1987 SC 877 (16) D 1988 SC1459 (14) R 1992 SC 604 (144)
ACT:
Land Acquisition Act 1894 (1 of 1894), Ss 4,
5A, 6 and 17-Land acquisition High Court held state action malafide- same land
acquired later under emergency power dispensing with statutory enquiry-Acquisition-Validity
of.
Land acquisition proceedings-Allegation by
land owner that statutory power misused to satisfy personal ends of an
individual with political influence - No attempt to contradict allegation
despite opportunity being afforded- malafides-If proved.
HEADNOTE:
In 1962, a site was chosen for a grain market
and the foundation stone for it was laid. This spot belonged to a cousin of
Respondent No. 22, an ex- Minister and an influential politician. This spot was
eventually abandoned in favour of the lands of Respondents Nos. 1 to 21, which
were notified in 1971. The landowners resisted and successfully impeached the
acquisition on the ground of mala fides before the High Court.
After a long interval, the State initiated
acquisition proceedings in respect of the same land a second time, invoking the
emergency powers under Section 17 of the Land Acquisition Act.
The Respondents Nos. 1 to 21 assailed the
acquisition before the High Court on the ground that the statutory power to
acquire land had been misused to satisfy the personal ends of Respondent No. 22
and that the acquisition was not for a legitimate statutory purpose. The High
Court struck down the 'declaration', and invalidated the acquisition.
Dismissing the Special Leave Petition of the
State, HELD:
Krishna Iyer, J.)
1. It is fundamental that compulsory taking
of a man's property is a serious matter and the smaller the man the more
serious the matter. Hearing him before depriving him is both reasonable and
preemptive of arbitrariness, and denial of this administrative fairness is
constitutional anathema except for good reasons. Save in real urgency where
public interest does not brook even the minimum time needed to give a hearing,
land acquisition authorities should not, having regard to Articles 14 (and 19),
burke an enquiry under S. 17 of the Land Acquisition Act. [1078H-1079B] In the
instant case a slumbering process, pending for years and suddenly exciting
itself into immediate forcible taking, makes a travesty of emergency power.
[1079B] 1072
2. The power to select land for acquisition
proceedings is left to the responsible discretion of Government under the Act,
subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this
jurisdiction and cannot raise its hand against what it thinks is a foolish
choice. Wisdom in administrative action is the property of the Executive and
judicial circumspection keeps the court lock-jawed save where power has been
polluted by oblique ends or is otherwise void on well-established grounds.
[1075 F-G]
3. Legal malice is gibberish unless juristic
clarity keeps it separate from the popular concept of personal vice.
Bad faith which invalidates the exercise of
power-sometimes called colourable exercise or fraud on power and often times
overlaps motives, passions, and satisfactions-is the attainment of ends beyond
the sanctioned purposes of power by simulation or pretension of gaining a
legitimate goal. If the use of the power is for the fulfillment of a legal
object the actuation or catalysation by malice is not legicidal. The action is
bad where the true object is to reach an end different from the one for which
the power is entrusted, goaded by extraneous considerations, good or bad, but
irrelevant to the entrustment. When the custodian of power is influenced in its
exercise by considerations outside those for promotion of which the power is
vested, the court calls it a colourable exercise and is undeceived by illusion.
[1075H-1076C]
4. Fraud on power voids the order if it is
not exercised bona fide for the end designed. Fraud in this context is not
equal to moral turpitude and embraces all cases in which the action impugned is
to effect some object which is beyond the purpose and intent of the power,
whether this be malice-laden or even benign. If the purpose is corrupt the
resultant act is bad. If considerations, foreign to the scope of the power or
extraneous to the statute, enter the verdict or impel the action, mala fides or
fraud on power vitiates the acquisition or other official act.
[1076 D-E] In the instant case the moving
consideration was not that this land was needed for the mandi, in the judgment
of Government, but that the mandi need was hijacked to reach the private
destination of depriving an enemy of his land through back-seat driving of the
statutory engine.
Respondent No. 22 when he became State
Minister of Panchayat and Development constituted a Selection Board and
appointed himself as President thereof. The choice was made of the site
belonging to Respondents 1 to 21 and lest the take-over delayed, even the S5A
enquiry was scuttled by invoking the emergency power S17. At times, natural
justice is the natural enemy of intolerant authority. The judicial process
under Article 226 therefore, rightly invalidated the acquisition on the ground
of mala fide. [1076F, 1078 C-E]
5. This court does not upset a factual
finding unless it is upset by perverse assessment, absence of evidence and the
like. [1077A]
6. Counsel in court are 'robed'
representatives, within the parameters of the adversary system, geared to the
higher cause of justice, not amoral attorneys paid to ventriloquize the case of
the principal. Every 'lawless' cause brought recklessly before the Court, is a
dubious gamble which blocks the better ones from getting speedy remedy. [1074E,
1073F] 1073 (Per Pathak J. concurring)
1. On a conspectus of the material on the
record it does seem that the impugned acquisition proceeding cannot be
sustained. There is reason to believe that the statutory power to acquire land
has been misued to satisfy the personal ends of the Respondent No. 22, an
individual who appears to be not without considerable political influence.
Despite an opportunity afforded to controvert
the allegations made by the Respondents Nos. 1 to 21, no attempt has been made
by him to contradict the allegations. [1079 E- F]
2. Whether or not the deliberations which
were said to have led to the selection of the land belonging to Respondent Nos.
1-21, were affected by the influence or pressure of the Respondent No. 22 is a
matter to which the officials or members selecting the land could alone be
privy. In the absence of any denial of the allegations made by the Respondents
Nos. 1 to 21 in the writ petition by a person having personal and direct
knowledge in the matter, and having regard to the entire history of the case,
it is difficult to resist the conclusion that the averments in the writ
petition alleging mala fides must be accepted. [1079H- 1080B]
CIVIL APPELLATE JURISDICTION: Special Leave
Petition (Civil) No. 1207 of 1978.
From the Judgment and Order dated 28-7-1977
of the Punjab and Haryana High Court in Civil Writ No. 1457 of 1977.
Hardev Singh for the Petitioner.
S.K. Sabharwal and Subhash Sharma for the
Respondents.
The following Orders were delivered:
KRISHNA IYER, J.-Every meritless petition for
special leave commits a double sin and here we are scandalized that the sinner
is the State itself. When thousands of humble litigants are waiting in the
queue hungry for justice and the docket-logged court is desperately wading
through the rising flood, every 'lawless' cause brought recklessly before it is
a dubious gamble which blocks the better ones from getting speedy remedy. Here
is an instance.
If-this is a big 'if'-I assume some of the
uncontradicted statements in the counter-affidavit and writ petition to be
true, read in the light of the High Court's decision against the Government
twice over that its action was mala fide and void, this disturbing petition, by
the State of Punjab for leave to appeal, which I now dismiss, lays bare the
basics of Power pathology and judicial philosophy in the unhappy setting of
personal vendetta fuelling the politics of compulsory land acquisition. Prof.
Miller's assertion that the Supreme Court
"acting as the 'national conscience' of the.. people" does mandate
standards towards which public and private behaviour must gravitate' is as true
in our jurisdiction as in his country.
1074 The factual matrix, enough to unfold why
the High Court twice condemned the State's action in a case of land acquisition
as mala fide and why we endorse so that view, must be stated. The order under
appeal is brief but there is more than meets the credulous eye beneath the
verbal surface available in the affidavits. The vice of misuse of power centred
round one Sri Satnam Singh Bajwa, 22nd Respondent, a former minister, a quondom
M.L.A., and a continuous politician. The 'writ-petitioners' (respondents 1 to
21 before us) seek to crucify him as the malefic presence prodding the impugned
acquisition. Since he did not enter appearance, despite service of notice, we
felt that a fresh opportunity or reminder should be afforded to him to deny, if
he so desired, the sinister imputations made against him.
The benefit of presumption of good faith
belongs to every man, until rebutted. Fresh notice was directed and effected to
the extent feasible but he did not respond and we leave it at that. We
proceeded to hear the case after a few adjournments.
We must highlight the fact that Sri Har Dev Singh
appearing for the State, struck a refreshing note of forensic propriety in
dissociating himself from supporting State action if there be any, which, in
the court's view was seared with bad faith and argued that, for his part, the
officers appear to have exercised power on the advice of the State's legal
remembrance without ill-will or affection.
Counsel in court are 'robed' representatives,
within the parameters of the adversary system, geared to the higher cause of
justice, not amoral attorneys paid to ventriloquize the case of the principal.
We cannot dismiss truth in paper- logged impatience but must try, with
counsel's services, to discover the justice of the cause. So we proceed to the
facts.
Punjab, the pride of the green revolution, is
a great agricultural State and, naturally, grain markets are a developmental
imperative. The whole litigation is about a piece of land sought to be taken by
the State to build a new mandi. Way back in 1962, a site apparently best suited
was selected in Qadian and the then Chief Minister, Partap Singh Kairon laid
the foundation stone, and a few poles erected there bear witness to this old
ceremony. Notification under Sec. 4 and declaration under Sec. 6 were
reportedly issued ten years ago (1969). But the very next year the proceedings
were denotified and in 1971 the land of respondents 1 to 21 were notified. In
Punjab, a province of peasant prosperity and private ownership, land is held
dear even to the point of murder, and tragic factions fester round agriculture.
Naturally, the land owners resisted and
successfully impeached the acquisition on the ground of mala fides before the
High Court. This 1075 order of the court, surprisingly enough, proceeded on the
admitted mala fides of the State and should have liberated this innocent piece
of land from litigative laceration. But, after a long interval, the State
chased the same land and rushed through acquisition proceedings a second time
invoking emergency powers under Sec. 17 of the Land Acquisition Act. This too
was assailed before the High Court on the ground of perversion of State power
to satisfy the malefic appetite of a particular person, not the legitimate
statutory purpose. Struck down again by the High Court, the State was
chagrinned and, perhaps, encouraged by the fact that the High Court dropped
contempt proceedings, the jurisdiction under Art. 136 has been invoked by the
Government of Punjab.
I have had the benefit of reading my learned
brother's concise judgment. The reasons given there have my broad agreement.
Four issues may be formulated to focus
specific attention.
1. What is mala fides in the province of
exercise of power ?
2. Is the acquisition proceeding in the
instant case bad for bad faith ?
3. Where, in the setting of Sec. 17 of the
Act, do we draw the legal line between legitimate emergency power and
illegitimate 'emergency excess' ?
4. On the facts, here, do we bastardize or
legitimize the State action under challenge ? First, what are the facts ? A
grain market was the public purpose for which Government wanted land to be
acquired. Perfectly valid. Which land was to be taken ? This power to select is
left to the responsible discretion of Government under the Act, subject to
Articles 14, 19 and 31, (then). The Court is handcuffed in this jurisdiction
and cannot raise its hand against what it thinks is a foolish choice. Wisdom in
administrative action is the property of the Executive and judicial
circumspection keeps the court lock-jawed save where power has been polluted by
oblique ends or is otherwise void on well-established grounds. The
constitutional balance cannot be upset.
The question, then, is what is mala fides in
the jurisprudence of power? Legal malice is gibberish unless juristic clarity
keeps it separate from the popular concept of personal vice. Pithily put, bad
faith which invalidates the exercise of power-sometimes called colourable
exercise or fraud on power and oftentimes overlaps 1076 motives, passions and
satisfactions-is the attainment of ends beyond the sanctioned purposes of power
by simulation or pretension of gaining a legitimate goal. If the use of the
power is for the fulfillment of a legitimate object the actuation or
catalysation by malice is not legicidal. The action is bad where the true
object is to reach an end different from the one for which the power is
entrusted, goaded by extraneous considerations, good or bad, but irrelevant to
the entrustment. When the custodian of power is influenced in its exercise by
considerations outside those for promotion of which the power is vested the
court calls it a colourable exercise and is undeceived by illusion. In a broad,
blurred sense, Benjamin Disraeli was not off the mark even in Law when he
stated: "I repeat...that all power is a trust-that we are accountable for its
exercise-that, from the people, and for the people, all springs, and all must
exist".
Fraud on power voids the order if it is not
exercised bona fide for the end designed. Fraud in this context is not equal to
moral turpitude and embraces all cases in which the action impugned is to
effect some object which is beyond the purpose and intent of the power, whether
this be malice- laden or even benign. If the purpose is corrupt the resultant
act is bad. If considerations, foreign to the scope of the power or extraneous
to the statute, enter the verdict or impel the action, mala fides or fraud on
power, vitiates the acquisition or other official act.
By these canons it is easy to hold that where
one of the requisites of s. 4 or s. 6, viz., that the particular land is needed
for the public purpose in view, is shown to be not the goal pursued but the
private satisfaction of wreaking vengeance, if the moving consideration in the
selection of the land is an extraneous one, the law is derailed and the
exercise is bad. No that this land is needed for the mandi, in the judgment of
Government, but that the mandi need is hijacked to reach the private
destination of depriving an enemy of his land through back- seat driving of the
statutory engine ! To reach this conclusion, there is a big 'if' to be
proved-if the real object is the illegitimate one of taking away the lands of
the respondents 1 to 21 to vent the hostility of Respondent 22, under the mark
of acquistion for the mandi.
This is a question of fact and the High Court,
twice over, within a period of seven years, held so, although the second time
no specific finding of mala fides was made. I do not quite see how else the
acquisition can fail and infer, not res judicata nor contempt of court but
repetition of mala fide acquisition as the real ground behind the 1077 High
Court's holding. This court does not upset a factual finding unless it is upset
by perverse assessment, absence of evidence and the like. None such exists and
I concur. But what have respondents 1 to 21 made out ? When power runs haywire
under statutory cover, more needs to be said to make good the exposure. This
takes me to a projection, in detail, on the screen of time, of the alleged
politicking behind the taking of property challenged in this case.
We assume the facts, stated in the
counter-affidavits, to the extent not expressly denied, especially because the
22nd respondent, Shri Bajwa, has not cared to contradict the turpitude imputed
to him, which is unfortunate. We draw tentative conclusions based on the
averments without the advantage of the affected party's response.
Long ago in 1962, a site was chosen for a new
grain market and the then Chief Minister, Shri Kairon, laid the foundation
stone, and some surviving poles bear testimony to this ancient ritual. This
spot belonged to a cousin of Shri Bajwa and was eventually abandoned in favour
of the lands of respondents 1 to 21. This venture of 1971 was shot down by
judicial fire triggered by the admitted ground of mala fides. Years rolled by,
but malice dies hard, if egged on by political scramble. So much so, the same
lands were again acquired in 1977, dispensing with so much as a statutory
enquiry, undeterred by the earlier decision of the High Court. The respondents
again assailed the acquisition as fuelled wholly by vendetta. The High Court
struck down the 'declaration' over again, and here we are with an application
for leave to appeal against the adverse order.
We cannot appreciate the unusual step of
quashing the acquisition twice over by the High Court on the rare score of
fraud on power unless we are instructed in the bitter longevity of election
hostility and the gentle genuflexion of administrative echelons when political
bosses express their wishes.
The version of the contesting respondents is
that two political factions go into action in all elections in Quadian, led by
Respondent 22, Satnam Singh Bajwa on the one hand, and his rival Gurbachan
Singh Bajwa, supported by the other respondents, on the other. Party labels,
where poll politics are personal, are less than borrowed apparel.
Satnam ran Congress and won a seat in the
Punjab Assembly in 1962 in the teeth of hot contest by Gurbachan and the
respondents. This election had its impact on the mandi acquisition. The site
where the foundation stone had been laid belonged to Satnam's cousin and this
was the best of the four alternatives selected by the Site Selection Board, the
least suitable, in their opinion, being of the respondents 1078 1 to 21. But
should an M.L.A. oblige his cousin and crush his rival, according to poll
dharma? We cannot answer but here Satnam's 'influence' postponed acquisition
proceedings, notwithstanding the ceremonial stone. In 1967, again, elections
came and Satnam won on the Congress ticket. But when the Akali Party formed the
Government Satnam decided to serve the people as Minister and for that purpose
transferred his politics from Congress to Akali. This ensured the safety of the
cousin's land from the mandi peril. The Akali Government fell in 1969 but he
fought as Akali, won the seat and became 'Forest Minister'. The respondents,
all the time, resisted him in vain. When 'President's Rule' came, statutory
notifications were issued for acquisition of the first site. The mandi project
remained frozen till then and showed signs of life during the short-lived
President's Rule, only to be given up in 1970 when Satnam became State Minister
of Panchayat and Development. He struck when the iron was hot by constituting a
Selection Board and appointing himself President thereof.
The choice was made of the site which was
allegedly the least suitable. Thus the axe fell on the respondents 1 to 21 and
lest the take-over be delayed, even the S. 5A enquiry was scuttled by invoking
the emergency powers under Sec. 17.
At times, natural justice is the natural
enemy of intolerant authority. Therefore, the judicial process, under Art. 226,
invalidated the acquisition on the ground of mala fides.
Back as an M.L.A. in 1972 Satnam nurtured the
faction politics, and there is reference in the writ petition to a murder and
other official interference which do not directly concern the case. He was
detained and paroled, and the contestants swear that by political influence and
use of relationship he revived the same acquisition once quashed by the High
Court. We skip many allegations of vice, of pressure, of defection as drawing
red-herring across the trail. But the crux of the matter is that uncontradicted
aspersions on Satnam having pressured the political Government to seize the
contestants' land goes a long way to affirm the High Court's view, in the
background of the long chronicle we have set out. The indefensible resort to
Sec. 17 is evidence of the length to which the executive would go to come to
terms with men wielding political power. No reason exists for us to grant leave
in the case where factually the High Court has found improper attempt to take a
citizen's land. We need not record any positive finding.
It is sufficient to state that no ground to
grant leave has been made out.
The fourth point about the use of emergency
power is well taken. Without referring to supportive case-law it is fundamental
that com- 1079 pulsory taking of a man's property is a serious matter and the
smaller the man the more serious the matter. Hearing him before depriving him
is both reasonable and preemptive of arbitrariness, and denial of this
administrative fairness is constitutional anathema except for good reasons.
Save in real urgency where public interest does not brook even the minimum time
needed to give a hearing land acquisition authorities should not, having regard
to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a
slumbering process, pending for years and suddenly exciting itself into
immediate forcible taking, makes a travesty of emergency power.
No constituency in our poor country can
afford Kilkenny cat politics and personality cult.
I dismiss the State's petition.
PATHAK, J. I agree that the petition should
be dismissed.
The original acquisition proceeding in respect
of the land belonging to Respondents Nos. 1 to 21 was quashed by the High Court
under Article 226 of the Constitution on the finding that the action was
vitiated by mala fides. A fresh attempt at acquiring the land was assailed by
the said respondents and has been struck down by the High Court. The
petitioners now pray for special leave to appeal.
On a conspectus of the material on the record
it does seem that the impugned acquisition proceeding cannot be sustained.
There is reason to believe that the statutory power to acquire land has been
misused to satisfy the personal ends of the respondent No. 22, an individual
who appears to be not without considerable political influence.
Despite an opportunity afforded to controvert
the allegations made by the respondents Nos. 1 to 21, no attempt has been made
by him to contradict the allegations. A counter affidavit has been filed in
this Court on behalf of the petitioners, the State of Punjab and the Extra
Assistant Colonization Officer, but the material portion of the counter
affidavit has been verified by its deponent "to the best of my knowledge
and belief as derived from official record". The land belonging to the
respondents Nos. 1 to 21 was selected by a body described as the Site Selection
Board. There was also a New Mandi Control Board. The deponent of the counter
affidavit was not a member of either Board. He was not a participant in the
deliberations which are said to have led to the selection of the land belonging
to the said respondents. Whether or not the deliberations were effected by the
influence or pressure of the respondent No. 22 is a matter to which the
officials or members selecting the land could alone be 1080 privy. In the
absence of any denial of the allegations made by the respondents Nos. 1 to 21
in the writ petition by a person having personal and direct knowledge in the
matter, and having regard to the entire history of the case, it is difficult to
resist the conclusion that the averments in the writ petition alleging mala
fides must be accepted.
The petition is dismissed.
N.V.K. Petition dismissed.
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