The Collector (Distt. Magistrate)
Allahabad & ANR Vs. Raja Ram Jaiswal [1985] INSC 107 (29 April 1985)
DESAI, D.A. DESAI, D.A. ERADI, V. BALAKRISHNA
(J)
CITATION: 1985 AIR 1622 1985 SCR (3) 995 1985
SCC (3) 1 1985 SCALE (1)1044
CITATOR INFO: D 1988 SC1459 (14) D 1989 SC
682 (10) RF 1991 SC 711 (13)
ACT:
Land Acquisition Act, 1894 section 4 (1),
scope of- Acquisition of Land For public purpose-Whether notification in the
official gazette and causing public notice of the substance of such
notification the need of a land for a public purpose, mandatory-Concept of
prejudice-Where in a case, objections have been filed to the acquisition
proceedings, pursuant to an earlier notification whether non publication and
non notification of its substance in the locality and of a corrigendum thereof
issued later would still vitiate the proceedings. under section 4 (1)-Effect Of
the world shall in section 4 (1)-When malafides are attributed, impleading of
the proper party effected thereby is obligatory-Malafides-Legal malafides
explained.
HEADNOTE:
Raja Ram Jaiswal along with the members of
his family purchased land bearing plot No. 26 with a building thereon
admeasuring 2978 sq. yds. situated at K.P. Kakkar Road in March 1971. The plan
for a sound proof air-condition ed cinema theatre on the said plot submitted by
him was sanctioned both by the District Magistrate and the local municipality
in December, 1970 and thereafter he applied for a certificate of approval under
Rule 3 read with Rule 7 (2) of the U.P. Cinematograph Rules. 1951 for
construction of a Cinema theatre.
The Hindi Sahitya Sammelan which was
initially formed as a voluntary organisation in 1910 and registered as a
society under the Societies Registration Act on January 8, 1914 retaining the
same name had earlier acquired and taken possession from the Allahabad
Municipal Board land admeasuring 7315 sq. yds. and in which a municipal school
was located for purpose of building "Sangrahalaya" or a
museum-cum-library-cum-reading room. However no museum has come up and the land
lies vacant. This Sammelan raised objections to the grant of a permit for the
constructions of the cinema theatre as in its view a theatre and a research cum
study center can go ill together. Overruling the objections, the District Magistrate,
the Licensing Authority under the U.P. Cinema (Regulation) Act, 1955 granted
the requisite certificate of approval, on March 24, 1972, under Rule 3 which
would in law imply that having regard to the provisions of the 1955 Act, and
1951 Rules, there was no legal impediment to the construction of a cinema
theatre on plot No. 26. Having failed to thwart the grant of certificate of
approval, the Sammelan wrote a letter on October 13, 996 1971 for acquiring
land bearing plot No. 26 admeasuring approximately 2865 sq. yds. On the ground
that it was needed for a public purpose namely for extension of Hindi
Sangrahalaya of Hindi Sahitya Sammelan Prayag. This Notification was published
in the U.P. Government Gazette on February 9, 1974.A notice under section 4 (1)
bearing the same date was served upon the petitioner as also the same was
published in the locality. The petitioner challenged the validity of the
notification on diverse grounds in Writ Petition No. 1932/74 and obtained
interim stay of taking over possession.
In the meantime, by Notification dated
February 6, 1975, the earlier Notification dated January 31, 1974 was cancelled
and a fresh Notification was issued to acquire "land bearing No. 62
admeasuring 8265 sq yds." and published in the U.P.. Gazette on February
lc. 1975. Consequently Writ Petition No. 1932174 was got dismissed as
infructuous. A notice dated March 6. 1975 under section 5 of the Land
Acquisition Act was served upon the petitioner inviting him to file his
objections, if any. The petitioner filed detailed objections on March 8, 1975
inter alia contending that the acquisition is for a company and the
pre-requisite for acquisition for a company having not been carried out, the
acquisition is had in law. It was also contended that the petitioner is not the
Owner of plot No. '2 admeasuring 8265 sq. yds Promptly on March 13, 1975, a
corringendum was issued and published in the Gazette on March 22, 1975
correcting the notification dated February 6, 1975 to read that instead of plot
No. 62 Plot No. 26 be read and instead of area 8265 sq. yds., 2865 sq. yds. be
read. The substance of Gazette the notifications dated 15.2.1975 March 22, 1975
were not published in the locality as required under section 4 (1). Tn between
the issue of the notification and the corrigendum, the petitioner filed Writ
Petition 3174175 questioning the validity Or the notification dated February 6,
1975 and duly amending the grounds after issue of the corrigendum. The High
Court negatived the challenges namely, (a) that the Notification was bad for
non compliance first with the provisions or the Land Acquisition ((Companies))
Rules, 1953; and (b) that the acquisition proceedings are malafide but quashed
the impugned notification on the ground of failure to cause public notice of
the substance of Notification under section 4 (1) to be published is the
locality. Hence the State appeal (CA No. 2458/80) by special leave and the
Special Leave Petition No. 9019/80 by Raja Ram.
Dismissing the State appeal and allowing in
part the Special Leave Petition. the Court. ^
HELD: 1. When the validity of a Notification
is questioned on the ground of malafides, proper parties affected by such an
allegation must be impleaded in the petition. In this case, Sammelan's
application for intervention under Order XX Rule 3 of the Supreme Court Rules
1966 must be granted though the Sammelan has not moved this Court against the
High Court's order rejecting the application for impleading. [1004D-E]
2.1 It is true that ordinarily courts do not
interfere at the stage of Sec. 4 notification because it merely constitutes a
proposal which will be meticulously examined after the objections arc filed
under Section SA by tho person interested 997 in the land wherein all aspects
of the matter can be threadbare gone into and examined. However, as a
notification under section 4 (I) initiates the proceedings for acquisition of
land and uses the expression 'shall' the mandate of the legislature bcomes
clear and therefore, the infirmities therein cannot be wholly overlooked on the
specious plea that the courts do not interdict at the stage of a more proposal.
11006-G]
2.2 A bare perusal of section 4 (1) clearly
shows that in order to comply with the statutory requirements therein set out,
a notification stating 'therein the land which is needed or is likely to be
needed for a public purpose has to be published in the official Gazette. The
second part of the sub-section provides that 'the Collector has to cause public
notice of the substance of 'such notification to be given at convenient places
in the locality in which the land proposed to be acquired is situated. Both the
conditions are mandatory. Unless both these conditions are satisfied, section 4
of the Land Acquisition Act cannot be said to have been complied with. Nor can
Court whittle down a mandate of legislation recognised by a long line of
decisions solely depending upon the facts of a given case; as is herer Further
after the 1974 (U.P. Amendment and Validation Act VIII of 1974), Section 4 (1)
on its true interpretation may unmistakably indicate that where the enquiry
under Section 5 A is not dispensed with by resorting to Sec. 17 (4), compliance
with the second part of Section 4 would be mandatory.
[1006H, 1007A-D, 1009D-E] Khub Chand and Ors.
v. State of Rajasthan and Ors., [1967] I SCR 120 at 125; Babu Barkya Thakur v.
The State of Bombay, [1961] I SCR 128: Smt. Somavanti and Ors. v. The Sf are of
Punjab & Ors., [1963] 2 SCR 774; State of Mysore v. Abdul Razak Sahib,
[1973] I SCR 856 referred to.
Gangadharaih v. State of Mysore &: Ors.,
(1961) Mys. L.J. 883 approved.
2.3 It is not correct assume that the sole
purpose behind publication of substance of Notification in locality, as
required secondly in section 4 (1) of the Land Acquisition Act is to make requirement
of section 5 A 'functionally effective. [1009G] Where a decision of the
Government to be effective and valid has to be notified in the Government
Gazette, the decision itself does not become effective unless a notification in
the Official Gazette follows. Therefore, assuming that a notification is a
formal expression of a decision of the Government to acquire land, unless the
decision is notified in the Government Gazette by an appropriate notification,
the proceedings for acquisition cannot be said to have been initiated and the
decision would remain a paper decision, Section 4 (1) further requires that
'the Collector shall cause public notice of the substance of such notification
to be given at convenient places in the said locality ' The expression 'such
notification' in the latter part of Section 4(1) and sequence of events therein
enumerated would clearly spell out that first the Government should reach a
decision to acquire land, then publish a notification under section 4 (1) and
simultaneously or within a reasonable time from the date of the publication of
the notification cause a notice to be published containing substance of such
notification meaning thereby that notification which is pub- 998 lished.
Obviously, therefore, there cannot he a publication in the locality prior to
the issuance of the notification.
[1010B-G] Babu Barkya Thakur v. The State of
Bombay, [1961] I SCR 128; Narendra Bahadur Singh and Anr. v. State of U.P.
& Ors, [1977] 2 SCR 226; State of Madhya Pradesh & Ors. v. Vishnu
Prasad Sharma & Ors, [1966] 3 SCR 557 held in applicable.
Mahendra Lal Jaini v. The State of Uttar
Pradesh & Ors, [1963] Supp. I SCR 912 relied on.
3.1 Where power is conferred to achieve a
purpose the power must be exercise reasonably and in good faith to effectuate
the purpose. And in this context 'in good faith' means for legitimate reasons.
Where it is exercised for extraneous or irrelevant consideration or reasons, it
is unquestionably a colourable exercise of power or fraud on power and the exercise
of power is vitiated. If the power to acquire land is to be exercised, it must
be exercised bona fide for the statutory purpose and for none other. If it is
exercised for an extraneous, irrelevant or non-germane consideration, the
acquiring authority can be charged with legal malafides. In such a situation
there is no question of any personal ill-will or motive [1018C-E] Municipal
Council of Sydney v. Compbell, [1925] A.C. 338 at 375 quoted with approval.
State of Punjab v. Gurdial Singh & Ors,
[1980] I SCR 1071 explained and followed.
3.2 Where power is conferred to achieve a
certain purpose, the power can be exercised only for achieving that purpose.
Section 4(1) confers power on the Government and .
the Collector to acquire land Deeded for a
public purpose.
The power to acquire land is (o be exercised
for carrying out a public purpose. If the authorities of the Sammelan cannot
tolerate the existence of a cinema theatre in its vicinity it cannot he said
that such a purpose would be a public purpose. The authority of the Sammelan
may honestly believe that the existence of a cinema theatre may have the
pernicious tendency to vitiate the educational and cultural environment of the
institution and therefore. it would like to wish away a cinema theatre in its
vicinity. That hardly constitutes public purpose. The proclaimed need of land
for putting up Sangrahalya is an easy escape route whenever Sammelan wants to
take over some piece of land. Need of the land for Sangrahalya is a figment of
imagination consured up to provide an ostensible purpose for acquisition. There
is enough land roughly admeasuring 7315 sq. yds. Lying vacant and unutilised
with the Sammelan for over a quarter of a century. The Sangrahalya has not come
up though this was the land which was taken from the Municipal Board for the
avowed object of putting up a Sangrahalya. The Sammelan moved on to Rangamanch
and Natyashala and then ultimately adopted a position that when the land is
made available, scheme will be devised for its proper use. The Sammelan was
ever interested in acquiring the land for effectuating any of its objects. It
was neither the plans nor the wherewithal nor any specific object 999 for which
it needs land and it is unable to use over years the land already available at
its disposal. Therefore, the Sammelan was actuated by extraneous and irrelevant
considerations in seeking acquisition of the land and the statutory authority
having, 'known this fact yet proceeded to exercise statutory pwoer and
initiated the process of acquisition. [1017F-H, 1018A B]
3.3 The power to acquire land was a exercised
for an extraneous and irrelevant purpose and it was colourable exercise of
power, namely, to satisfy the chagrin and anguish of the Sammelan at the coming
up of a cinema theatre in the vicinity of its campus, which vowed to destroy.
There fore, the consideration dated 6 2.1975 is illegal and invalid. [1019E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2458 and S.L.P. No. 9019 of 1980 From the Judgment and Order dated 7.12.
1979 of the Allahabad High Court in Civil Misc. Writ Petition No. 3174 of 1975
R.N. Trivedi, Additional Advocate General, Gopal Subramaniam and Ms. Shobha
Dikshit for the Appellants.
F.S Nariman, Raja Ram Agarwal, Yogeshwar
Prasad, Mrs. Rani Chhabra and Ms. Suman Bagga for the respondent.
The Judgment of the Court was delivered by
DESAI, J. Respondent Raja Ram Jaiswal moved Civil Miscellaneous Writ Petition
No. 3174 of 1975 under Art. 226 of the Constitution in the High Court of
Judicature at Allahadad questioning the validity of the Notification dated
February 6, 1975 issued under Sec. 4(1) of the Land Acquistion Act ('Act' for
short) as also a notice dated March 6, 1975 served upon him pursuant to the
afore- mentioned notification. The impugned notification was published in the
U.P. Government Gazette dated February 15, 1975. By this impugned notification,
land bearing Plot No. 62 approximately admeasuring 8265 sq. yds. was sought to
be acquired as being needed for a public purposse namely for extension of Hindi
Sangrahalaya of the Hindi Sahitya Sammelan Prayag.A substances of this
notification was published in the locality where the land sought to be acquired
is situate. On March 22, 1975, a corrigendum dated March 13, 1975 was published
by which the impugned notification dated February 15, 1975 was to stand
corrected Plot No. 26 instead of 62 and the area sought to be acquired to be
read as 2865 sq. yds. 1000 instead of 8265 sq. yds. After the publication of
the corrigendum the petitioner sought amendment of the petition which was
granted. Validity of the amended notification was challenged on diverse
grounds. However, at the hearing of the petition, the challenge was confined to
the following four grounds as summarised in the judgment of the High Court. They
may be extracted:
"1. Notification dated 6.2.75 issued
under Sec. 4 of the Land Acquisition Act is invalid in as much as it had been
issued without first complying with the provisions of rule 4 of the Land
Acquisition (Companies) Rules, 1963.
2. Acquisition proceedings are mala fide.
3. Notice under section 4(1) of the Act was
served upon the petitioner on 6th March, 1975 when only two days time was left
for filing objections under Section 5-A of the Land Acquisition Act. This
rendered the proceedings illegal.
4. The notification under Section 4(1) did
not relate to plot No. 26 belonging to the petitioner.
Proceedings to acquire the said plot are
therefore without jurisdiction." After the petition was amended two
additional grounds of challenge were pressed on behalf of the respondent. They
are:
"1. The notification dated 13th March,
1975 is invalid for the very same reason for which the notification dated 6th
February, 1973 is claimed to be invalid.
"2. The Land Acquisition proceedings are
invalid inasmuch as the notification dated 13th March, 1975 was neither
published nor was its substance notified in the locality, as also because no
notice thereof had been served upon the petitioner." Negativing all the
challenges except the one that as there was failure to cause public notice of
the substance of notification under Sec. 4(1) to be published at convenient
place in the locality on 1001 this short ground, the impugned notification was
quashed.
Hence this appeal by the Collector, Allahabad
and the Land Acquisition Officer by special leave.
Respondent who was the original petitioner
but is respondent in the appeal filed by the Collector will be referred to as
the petitioner in this judgment.
Petitioner field Special Leave Petition No.
9019 of 1980 against the same judgment contending that the High Court committed
an error in rejecting the challenge to the validity of the impugned
notification on the ground of legal mala fides as also on the ground of
non-compliance with Rule 4 of the Land Acquisition (Companies) Rules, 1963.
As both these matters arise out of the same
judgment, they were heard together and are being disposed of by a common
judgment. It may be mentioned that connected Civil Appeal No. 2437 of 1981 was
to be taken up for hearing after the hearing concluded in D the present appeal
and therefore, the judgment in this matter was postponed because the
observations in one were likely to have some impact on the disposal on merits
of the contentions in the cognate appeal.
Though very much delayed by circumstances
beyond our control, few days back the hearing in the cognate appeal is over and
therefore, both the appeals can now be disposed of though by separate
judgments.
A brief resume of the facts leading to the
writ petition field in the High Court would be quite instructive in this case.
The Hindi Sahitya Sammelan ('Sammelan' for short) for whose benefit the land
was sought to be acquired was initially formed as a voluntary organisation in
1910 and on January 8, 1914 it was registered as a society under the Societies
Registration Act retaining the same name. Some where in 1950 difference arose
between the members of the society and the attempt to alter the constitution of
the society, ultimately led to litigation. U.P.. Legislature enacted an Act
styled as U.P. Hindi Sahitya Sammelan Act No.
36 of 1956 under which a statutory body was
created under the name of Hindi Sahitya Sammelan. The statutory body was to
take over the management and properties of the society.
The Act was however struck down as
unconstitutional in Damyanti Naranga v. Union of India & Ors.(l) The pre-
existing Sammelan which was a registered society (1) [1971] 3 S.C.R. 840 1002
continued to function as such. It is for the benefit of the Sammelan that the
land involved in the dispute was sought to be acquired. According to the
Sammelan, it is in need of land for building 'Sangrahalaya' which was roughly
translated as museum-cum-library cum reading room.
At the instance of the Sammelan, Allahabad
Municipal Board agreed to hand over the land and building in which a municipal
school was located, situated at Kamta Prasad Kakkar Road adjacent to the
Central office and Press of the Sammelan, on certain conditions. The Sammelan
needed the land, as it was then declared, to establish a museum.
The land with the school building thereon was
transferred to the Sammelan in 1953. It may be mentioned that even till today
the area of land admeasuring 7315 sq. yds. in possession of the Sammelan is
Lying vacant and for the quarter of a century, museum has not come up. This
aspect is mentioned in some detail as it has an impact on the contention
canvassed in these appeals.
Petitioner Jaiswal along with the members of
his family purchased land bearing plot No. 26 with a building thereon admeasuring
2978 sq. yds. situated at K. P. Kakkar Road in March 1970. The petitioner
wanted to build a sound-proof air-conditioned cinema theatre on the plot No. 26
purchased by him. The plan for the proposed theatre was sanctioned both by the
District Magistrate and the local municipality in December 1970. It may be
recalled here that the judgment of this Court holding Hindi Sahitya Sammelan
Act unconstitutional was rendered on February 23, 1971. The Sammelan was wholly
opposed to the construction of a theatre near its campus as in its view a
theatre and a research-cum- study centre can go ill together. Therefore, when
the petitioner applied for a certificate of approval under Rule 3 read with
rule 7(2) of the U.P. Cinematograph Rules 1951 for construction of a cinema
theatre, authorities of the Sammelan raised a storm of protest, sometimes
peaceful occasionally likely to turn violent impelling authorities to impose
restrictive orders under Sec. 144, Code of Criminal Procedure. Sammelan also
submitted a long memorandum setting out its objections with a view to
persuading the authorities not to grant a certificate of approval for
construction of a cinema II (1) [1971] 3 S.C.R. 840 1003 building. Overrullng
the objections the District Magistrate, the Licencing Authority under the U.P.
Cinemas (Regulation) Act, 1955 granted the requisite certificate of approval
under Rule 3 which would in law imply that having regard to the provisions of
the 1955 Act and 1951 Rules, there was no legal impediment to constructing a cinema
theatre on plot No. 26. Thereupon, Secretary of the Sammelan addressed a letter
to the Chief Minister of State of U.P. complaining against the grant of the
permission by the District Magistrate and requesting the Chief Minister to
cancel the permission. Ultimately, having failed to thwart the grant of
certificate of approval. the Sammelan wrote a letter on October 13, 1971 for
acquiring land bearing Plot No. 26. It may be recalled that the certificate of
approval for constructing a cinema building was granted by the District
Magistrate on March 24, 1972. The Sammelan addressed various letters to various
authorities including the then Prime Minister of India requesting them to
cancel the certificate of approval granted to the petitioner. Ultimately on January
31, 1974, a notification under Sec. 4(1) of the Land Acquisition Act, 1894 was
issued stating therein that the land bearing plot No.`26 admeasuring approx.
2865 sq. yds.
was needed for a public purpose namely for
extension of Hindi Sangrahalaya of Hindi Sahitya Sammelan Prayag'. This
notification was published in the U.P. Government Gazette on February 9, 1974.A
notice under Sec. 4(1) bearing the same date was served upon the petitioner as
also the same was published in the locality. The petitioner challenged the
validity of this notification on diverse grounds in Writ Petition No. 1932174
and as a measure of interim relief, the High Court stayed further proceeding
that may be taken to acquire the land. In the meantime by notification dated
February 6, 1975, the earlier notification under Sec. 4(1) dated January 31,
1974 was cancelled and a fresh notification was issued to acquire 'land bearing
plot No. 62 admeasuring 8265 sq. yds for the earlier mentioned public purpose'.
Consequently, the writ petition in which the validity of the earlier
notification was questioned was disposed of as infructuous. The second
notification dated February 6, 1975 was published in the U.P. Gazette on
February 15, 1975.A notice dated March 6, 1975 under Sec. 5A of the Land Acquisition
Act was served upon the petitioner inviting him to file his objection, if there
be any, against the proposed acquisition. The petitioner filed detailed
objections on March 8, 1975 inter alia contending that the acquisition is for a
1004 company and the pre-requisite for acquisition for a company having not
been carried out, the acquisition is bad in law.
It was also contended that the petitioner is
not the owner of plot No. 62 admeasuring 8265 sq. yds. Promptly on March 13,
1975, a corrigendum was issued and published in the Gazette on March 22, 1975
correcting the notification dated February 6, 1975 to read that instead of plot
No. 62, plot No. 26 be read and instead of area 8265 sq. yds. 2865 sq. yds. be
read. In between the issue of the notification and the corrigendum, the
petitioner filed Writ Petition 3174/75 questioning the validity Or the
notification dated February 6, 1975. The High Court struck down the
notification as invalid and during the pendancy of the writ petition in the
High Court, further continuance e of the acquisition proceedings were stayed.
If the petitioner questioned the validity of
the notification on ground of mala fides, he ought to have joined Sammelan as
respondent. Having failed to implead a proper party, he behaved curiously in
opposing the application of the Sammelan for being impleaded as a party.
The High Court was in error in rejecting the
application.
Therefore, when the Sammelan moved an
application for intervention under Order XX rule 3 of the Supreme Court Rules,
1966, we granted the same and Mr. S.N. Kacker learned counsel appeared for the
Sammelan at the hearing of these appeals and addressed his oral arguments and
submitted written submissions.
The High Court struck down the notification
holding that in order to be a valid notification under Sec. 4(1), it has to be
published or notified for general information in the Official Gazette and for
purposes of Sec. SA of the Act, it would be taken to have been published on the
date of such publication in the Official Gazette, and the second part of Sec.
4(1) requires the publication of the substance of the notification in the
locality'- This having not been complied with, the notification was bad and
invalid. The correctness of this view is questioned on behalf of the
appellants.
After scruitinising the evidence placed on
record, the High Court has recorded a finding that the substance of the
notification was not published in the locality either after 15th February, 1975
when the notification dated February 6, 1975 was first published in the
Official Gazette or after March 22, 1975 when the corrigendum was 1005
published in the Official Gazette and thus the requirement of the second part
of Sec. 4(1) has not been complied with.
The finding that there was no such
publication as herein indicated was not seriously questioned and in fact could
not be questioned.A few facts will affirmatively establish it.
The first notification dated January 31, 1974
was published in the official Gazette dated February 9, 1974 and in respect of
which a notice was published in the locality in March, 1974.A copy of the
notice was served on the petitioner on March 6, 1974. This notification bore
the number 78- VIII-LAQ and it was in respect of plot No. 26 admeasuring 2865
sq. yds. This notification was cancelled and superseded by another notification
No. 552-VIII-LAQ dated February 6, 1975, which was published in the Official
Gazette dated February 15, 1975. This latter notification clearly recites that
the earlier notification dated February 9, 1974 is thereby cancelled. In the
latter notification dated Feb. 6, 19751 the land proposed to be acquired was
shown to be plot No. 65 admeasuring 8265 sq. yds. Admittedly notice of the
substance of this notification was not published in the locality. The
petitioner had nothing to do with land bearing plot No. 62 admeasuring 8265 sq.
yds. As the previous notification was cancelled, he had nothing to worry about
the second notification which has no relevance to the plot belonging to him.
The corrigendum dated March 13, 1975 was issued and published in the Official
Gazette dated March 22, 1975 correcting the plot number and the area and the
corrected entry was to be in reference to plot No. 26 and area to be acquired
was to be 2865 sq. yds.
Admittedly, there was no notice of
publication of the substance of the notification dated February 15, 1975 nor of
the corrigendum dated March 22, 1975 in the lacality. The High Court was
therefore, right in holding that in respect of the later notification and corrigendum,
no notice was published in the locality and latter part of Sec. 4(1) was not
complied with.
Sec. 4(1) in its application to the State of
U.P. read as under:
"4(1): Whenever it appears to the
appropriate Government or Collector that land in any locality is needed or is
likely to be needed for any public purpose, a notification to that effect shall
be published in the Official Gazette, and the Collector shall cause public
notice of the substance of 1006 such notification to be given at convenient
places in the said locality." By Land Acquisition (U.P. Amendment And
Validation) Act Vlll of 1974, the section was amended to read as under:
"4(1): Whether it appears to the
appropriate Government and the Collector that land in any locality is needed or
is likely to be needed for any public purpose, a notification to that effect
shall be published in the Official Gazette, and except in the case of any land
to which by virtue of a direction of the State Government under Sub-section (4)
of Sec. 17, the provisions of Sec. 5-A shall not apply, the Collector shall
cause public notice of the substance of such notification to be given at
convenient places in the said locality." Though this amendment of 1974 is
subsequent to the impugned notification, yet some reference was made to it to
buttress the sub mission that the only purpose of a notification under Sec.
4(1) and the public notice in the locality is to make functionally effective
the provisions of Sec. 5A so that the persons interested in the land sought to
be acquired can canvass his objections against the proposed acquisition. We
shall presently deal with it.
Mr. S.N. Kacker for the intervener and Mr.
Dikshit for the State of U.P. urged that ordinarily courts do not interfere at
the ,. stage of Sec. 4 notification because it merely constitutes a proposal
which will be meticulously examined after the objections are filed under Sec.
5A by the person interested in the land wherein all aspects of the matter can
be threadbare gone into and examined. Broadly stated, one cannot take serious
exception to this submission. However, as a notification under Sec. 4 (1)
initiates the proceedings for acquisition of land aud uses the expression
'shall' the mandate of the legislature becomes clear and therefore, the infirmities
therein cannot be wholly overlooked on the specious plea that the courts do not
interdict at the stage of a mere proposal.
bare perusal of Sec. 4 (1) clearly shows that
in order to comply with the statutory requirements therein set out, a notification
1007 stating therein the land which is needed or is likely to be needed for a
public purpose' has to be published in the official Gazette. The second part of
the sub-section provides that 'the Collector has to cause public notice of the
substance of such notification to be given at convenient places in the locality
in which the land proposed to be acquired is situated. Both the conditions are
held by a catena of decisions to be mandatory Whether the second condition is
mandatory or directory is no more res integra.
In Khub Chand and Ors. v. State of Rajasthan
and Ors.(1), Subba Rao, CJ speaking for the court observed that 'the statutory
intention is, therefore, clear, namely, that the giving of public notice is
mandatory. If so, the notification issued under s. 4 without complying with the
said mandatory direction would be void and the land acquisition proceedings
taken pursuant thereto would be equally void.' While reaching this conclusion,
the Court distinguished the decision in Babu Barkya Thakur v. The State of
Bombay(2) wherein it was held that 'any defect in the notification under Sec. 4
is not fatal to the validity of the proceedings, particularly when the
acquisition is for a company and the purpose has to be investigated under s. 5A
or s. 40 necessarily after the issue of the notification under s. 4 of the
Act'. The Court pointed out that the defect with which the notification in Bahu
Barkya Thakur's case sufferred was of a formal nature and did not go to the
root of the matter. However, the decision is not an authority for the
proposition that if a public notice of the notification was not given as
prescribed by s. 4, it can be ignored. The pertinent observation of the court
is that such an approach would constitute rewriting The section. The court also
referred to Smt. Somavanti and Ors. v. The State of Punjab & Ors.(3) and
quoted with approval the statement therein made that a valid notification under
sub-s. (I) of Sec. 4 is a condition precedent t-) the making of a declaration
under sub-s. (1) of Sec. 6. This view has been consistently followed and was
approved in State of Mysore v.
Abdul Razak Sahib(4), wherein it was observed
that in the case of a notification under Sec. 4 of the Land Acquisition Act,
the law has prescribed that in addition to the publication of the notification
in the Official Gazette, the Collector must also give publicity of the
substance of the notification in the concerned locality. Unless both these
conditions are satisfied, s. 4 (1) [1967] 1 S.C.R. 120 at 125.
(2) [1961] 1 S.C.R. 128.
(3) [1963] 2 S.C.R. 774.
(4) [1973] 1 S.C.R. 856.
1008 of the Land Acquisition Act cannot be
said to have been complied with. The publication of a notice in the locality is
a mandatory requirement. Mr. Kacker however, drew our attention to a few more
observations in the judgment wherein it was said that there is an important
purpose behind publication of the substance of the notification in the locality
because in the absence of such publication, the interested persons may not be
able to file their objections challenging the proposed acquisition and they
will be denied an opportunity afforded by s. 5A which confers a very valuable
right. Relying on this observation Mr. Kacker urged that if the underlying
purpose behind publication of a notice in the locality is to give an
opportunity to the person interested in the land to object to the acquisition,
where in a case the purpose is achieved as in this case the petitioner having
filed his objections, the failure to publish the substance of the notification
in the locality need not be treated fatal and cannot invalidate the
proceedings. The submission as presented is very persuasive and but for binding
precedents, we would have accorded considerable attention to it. But we would
not whittle down a mandate of legislation recognised by a long line of
decisions solely depending upon the facts of a given case.
Further the submission is predicated upon an
assumption that the sole purpose behind publication of substance of
notification in locality is to make requirements of Sec. 5A functionally
effective. The assumption as would be pointed out is not well founded. In fact,
the court in the last mentioned case went so far as approving the decision of
the Mysore High Court in Gangadharaih v. State of Mysore & Ors.(l) wherein
it was ruled that 'when a notification under s. 4 (1) is published in the
official Gazette and it is accompanied by or immediately followed by the public
notice, that a person interested in the property pro posed to be acquired can
be regarded to have had notice of the proposed acquisition.' This is a
mandatory requirement for legal compliance with requirements of Sec. 4 (1). In
Narendra Bahadur Singh and Anr. v. State of U.P. & Ors(2) this Court
reiterated that a publication of the notice in the locality as required by the
second part of s. 4 (1) is mandatory and unless that notice is given in
accordance with the provisions contained therein, the entire acquisition
proceedings are vitiated. Repelling the contention, that (1) [1961] Mys. L.J,
883 (2) [1977] 2 S.C.R. 226.
1009 the only purpose behind publication of a
notice in the locality is to give opportunity to the person interested in the
land to prefer objections under Sec. 5A which confers a valuable right, it was
held that even though in the facts of that case, the inquiry under s. 5A was
dispensed with by a direction under Sec. 17 (4) of the Act, the failure to
comply with the second condition in Sec. 4 (1) is fatal. It was pertinently
observed that provisions of Sec. 4(1) cannot be held to be mandatory in one
situation and directory in another and therefore, it cannot be said that the
only purpose behind making the publication of notice in the locality mandatory
is to give an opportunity to the persons interested in the land to file
objections under Sec. 5A. Of course, what other object it seeks to subserve has
been left unsaid. But the answer is not far to seek. At least we have no doubt
that the only visible and demonstralle purpose behind publication of the
substance of the notification under Sec. 4 (1) in the locality where the land
proposed to be acquired is situated, is to give the persons interested in the
land due opportunity to submit their considered objections against the proposed
notification.
Incidentally, it may be pointed out that
after the 1974 amendment, Sec. 4 (1) on its true interpretation may
unmistakably indicate that where the enquiry under Sec. 5A is not dispensed
with by resorting to Sec. 17 (4), compliance with the second part of Sec. 4
would be mandatory. We however do not propose to go into this aspect because
the amendment is subsequent to the notification.
Mr. Kacker however on behalf of the
interveners while conceding that there cannot be a valid acquisition unless a
notification is published in the Official Gazette and a substance of the
notification is published in the locality, urged that publication in locality
need not necessarily follow the publication of the notification in the Official
Gazette but it may even precede the same because what is of importance is the
decision to acquire, the notification and publication of the notice are mere
formal expressions of the decision of the Govt. to start acquisition
proceedings.
Proceeding along it was said that the second
requirement of Sec. 4 (1) v z. publication of the notice in the locality is
only to make effective the provisions of Sec. 5A and that such minor defect
cannot invalidate notification under Sec.
4. To substantiate this submission, reliance
was placed upon the decisions in Babu Barkya Thakur's case, State of Madhya
1010 Pradesh & Ors. v. Vishnu Prasad Sharma & Ors.(l) and Narendra
Bahadur Singh's case. All these decisions do not bear out or substantiate the
submission of Mr. Kacker for the reasons already mentioned.
Assuming that a notification in the Official
Gazette is a formal expression of the decision of the Government, the decision
of the Government is hardly relevant, unless it takes the concrete shape and
form by publication in the Official Gazette. Where a decision of the Government
to be effective and valid has to be notified in the Government Gazette, the
decision itself does not become effective unless a notification in the Official
Gazette follows. In Mahendra Lal Jaini v. The State of Uttar Pradesh &
Ors.(2) it was held that a notification under Sec. 4A of the Indian Forest Act,
1927 is required to be published in the Gazette and unless it is so published,
it is of no effect.
Logically, the same view must be adopted for
a notification under Sec. 4. Therefore assuming that a notification is a formal
expression of a decision of the Government to acquire land, unless the decision
is notified in the Government Gazette by an appropriate notification, the
proceedings for acquisition cannot be said to have been initiated and the
decision would remain a paper decision. Sec. 4 (1) further requires that 'the
Collector shall cause public notice of the substance of such notification to be
given at convenient places in the said locality.' The expression 'such
notification.' in the latter part of Sec. 4 (1) and sequence of events therein
enumerated would clearly spell out that first the Government should reach a
decision to acquire land, then publish a notification under Sec.4 (1) and
simultaneously or within a reasonable time from the date of the publication of
the notification cause a notice to be published containing substance of such
notification meaning thereby that notification which is published. Obviously,
therefore, there cannot be a publication in the locality prior to the issuance
of the notification. The submission of Mr. Kacker does not commend to us.
In this context, it was next contended that at
any rate the petitioner has not suffered any prejudice by the failure of the
Government to publish a notice in the locality because the petitioner has filed
detailed objections against the proposed acquisition. If the (1) [1965] 3
S.C.R. 557.
(2) [1963] Supp, 1 S.C.R. 912.
1011 only purpose behind publishing the
notice in the locality was to give an opportunity to the persons interested in
the laid to file their objections, the submission would have merited
consideration, but the same has been expressly negatived and therefore, it is
futile to examine the same.
To be brutally frank if this was the only
ground for invalidating the notification, in the backdrop of facts we would
have our serious reservations in upholding the decision, though as the law stands,
the High Court was perfectly justified in reaching this conclusion. Our
reservations have nothing to do with the perfectly legal view taken by the High
Court. They stem from the facts of this case and our understanding of the
purpose behind publication of notice as set out by us earlier. In such a
situation, we would have developed the concept of prejudice and the absence of
it resulting in negativing the contention. But there are other formidable
challenges to the validity of the impugned notification, which of course have
not found favour with the High Court but we are inclined to take a different
view of the matter. Therefore we let the decision of the High Court on this
point stand.
Turning to the petition for special leave
filed by the petitioner, we grant special leave to appeal and proceed to
examine the two challenges to the validity of the notification under Sec. 4(1)
which have been negatived by the High Court. The petitioner questioned the
validity of the notification inter alia on the ground that the acquisition was
malafide and that the acquisition being for a Company, it would be invalid for
failure to comply with the provisions of rule 4 of the Land Acquisition
(Companies) Rules, 1963. The High Court negatived both the challanges.
Mr. Nariman, learned counsel for the
petitioner invited us to examine them.
The relevant averments on the question of
mala fides as set out in the writ petition filed in the High Court may be
briefly summarised. As the objections by the Sammelan for not granting a
certificate of approval for constructing a cinema building on Plot No. 26 were
not accepted by the Licensing authority and a certificate of approval was
subsequently granted to the petitioner, the Sammelan in order to achieve the
same object, namely, not to permit a theatre to be constructed at the place,
moved the authorities for acquiring the land. It is averred that the genesis of
the proceeding for acquisition is not in the need of the Sammelan but its
failure to stop the cinema theatre coming up and thus the purported need is
non- 1012 existent and the initiation of the acquisition proceedings was mala
fide. Its sole purpose is to deprive the petitioner of the cinema business
which he would legally carry on.
Frankly, the averments are not very specific,
clear, precise and to the point. But the comulative effect of the allegations
is that Sammelan being actuated by the ulterior motive to thwart the
petitioners' project to construct a cinema building resorted to the dubious
method of seeking acquisition of the land even though it had no need present or
in near future of the land in question. Obviously, if such be the allegation,
the Sammelan ought to have been impleaded as a party to the writ petition Not
only the Sammelan was not impleaded as the party, but when the Sammelan moved
an application for intervention or for being joined as a party, the petitioner
was ill-advised to object to the same and unfortunately the objection prevailed
with the High Court. We are unable to appreciate both the objections and the
view taken by the High Court. Therefore, when Nariman pressed his petition for
special leave to appeal against the rejection of the challenge on the afore-
mentioned two grounds, we made it abundantly clear that we would be least
interested in examining the challenge founded on the ground of mala fides in
the absence of the Sammelan.
The Sammelan had moved a petition for
intervention which, it must be stated in fairness to Mr. Nariman, was not
objected in this Court and we made it abundantly clear that the request for
being impleaded as a party in the High Court ought not to have been objected.
Accordingly, the petition for intervention was granted and the Sammelan was
given an opportunity to file its affidavit as well as any material that it chooses
to place on record. According to the rules, the interveners are not entitled to
address oral submissions to the court but in the background of the facts of
this case, we gave full opportunity to Mr. Kacker to address oral submissions.
It is in the backdrop of these facts that we propose to examine the challenge
founded on the ground of mala fides.
A few facts will have to be recapitulated.
After the petitioner purchased the Plot No. 26 and submitted an application on
July 6, 1971 to the licensing authority for grant of a certificate of approval
as envisaged by rule 3 read with rule 7 of U.P. Cinematograph Rules, 1951
('1951 Rules' for short) for constructing a cinema building on Plot No. 26, the
Sammelan promptly objected to the grant of certificate of approval on the
ground that existence of a cinema theatre within the vicinity of the campus of
the institute of culture learning 1013 and research like the Sammelan would be
destructive of the environment and the atmosphere of the institute, and existence
of a cinema theatre at such a place would be an incongruity. May be, it might
be the honest and genuine belief of the office-bearers of the Sammelan that an
institute of learning and research cannot co-exist with a cinema theatre in its
vicinity, and that the latter may pollute the educational and cultural
environment The District Magistrate as the licensing authority after
corresponding with the State authorities granted the certificate of approval on
February 24, 1974. On October 13, 1971, the Sammelan sent a communication
addressed to the Chief Minister of U.P. in which it was stated that a cinema
building should not be permitted to be constructed in the vicinity of the
campus of the Sammelan. The letter also refers to an earlier application
addressed to the Chief Minister requesting him to intervene so that the
proposed cinema house may not be permitted to be constructed near the campus of
the Sammelan, because it is likely to cause nuisance and interfere with the
activities and the academic environment of the Sammelan. Further request was
made in the letter that administrative sanction may be granted for acquisition
of land on which the cinema building is proposed to be constructed offering
that the Sammelan is ready to pay whatever compensation that may have to be
paid for acquisition of the land and the building thereon. The Ditrict
Magistrate by his letter dated November 8, 1971 addressed to the Pradhan Mantri
of the Sammelan pointed out that the Revenue Board had directed that no
institution should be given land more than that required for its purpose and
that where the land is to be acquired by a body, such a body itself must make
an attempt to directly purchase the land. Then comes a sentence which may be
extracted:
"It is also evident by your above
referred letter that you stood in need of acquiring land because the owner of
the land wants to construct a cinema house over it and the institution does not
want that a cinema should be constructed over the same.
It is clear by the above circumstances that
the land is not so much required by the institution as for the construction of
the cinema house. Therefore, I would request you to consider the matter and if
your aim is that the cinema house is not constructed you may resort to other
means." (underlining ours) 1014 In the meantime on December 16, 1971,
Joint Secretary to the Government of U.P. wrote to the District Magistrate
enquiring as to 'whether in granting the certificate of approval, Rule 7 (2) of
the 1951 Rules was violated; What is the sphere of the activities of the
Sammelan; does it undertake teaching or other such activities by virtue of
which it may be placed in the category of Educational Institutions; if for some
other reasons, construction of cinema house on proposed site is against public
interest, seek Government's approval in this respect specifying the reasons
thereon; obtain written objections from the Sammelan; if required take
Government's approval making recommendations; and intimate whether cinema
building will be sound-proof.' On March 24, 1972, the District Magistrate as
the licensing authority sent a detailed reply inter. alia stating that the
Sammelan is not an educational institution nor a residential institution and it
has no regular programme of class teaching and it cannot be styled as an
educational institution within the meaning of the expression in rule 7. He also
opined that having regard to all relevant factors and other circumstances
construction of a cinema building on the proposed site is not against the
public interest. He also opined that the approved plans of the building show an
air-conditioned sound-proof cinema theatre which would enhance the
beautification of the locality and would enrich the coffers of the State. It
was lastly pointed out that the distance between the proposed cinema building
and the campus of the Sammelan was about 95 feet as crow-fly measure. He
concluded by saying that having regard to all the circumstances, he was of the
opinion that public interest in no way would be damaged if the permission is
granted for construction of the cinema house in question on the proposed site,
and that he was proceeding to grant permission to the applicant which is being
forwarded to the Government. After the receipt of the permission, the old
existing building on Plot No. 26 was demolished by the petitioner and
construction of a modern cinema theatre fully air-conditioned and sound-proof
was commenced On August 7, 1983, the Sammelan moved a formal application
requesting for initiating acquisition proceedings of land included in Plot No.
26 as it was needed by the Sammelan for the purpose of extension of Hindi
Sangrahalya (Museum'. Skipping over some of the intermediate steps including a
request to the then 1015 Prime Minister to intervene and thwart the cinema
project, when the first notification under Sec. 4 (1) was published, the
purpose for which the land was to be acquired was shown to be 'extension of
Hindi Sangrahalya at Hindi Sahitya Sammelan Prayag'.
Way back on July 22, 1949, the Sammelan with
a view to establishing a museum in connection with a Hindi University
approached the Allahabad Municipal Board to transfer a middle school building
along with the Gymnacia attached to it. The Municipal Board unanimously
sanctioned the proposal to handover the building of the school with appurtenant
land situated at Kanta Prasad Kakkar Road (that is the road on which the
irritating cinema theatre has come up) to the Sammelan subject to the condition
that the Sammelan would construct a school building at South Malaka at a cost
of Rs.
30,000. The Sammelan accepted the condition
and complied with it. The Government accorded sanction to the proposal on
September 9, 1953 and since then the school building with the land over which
it is standing and the Gymnacia were transferred to the Sammelan. It is an
admitted position that an area of 7315 sq. yds. Of land in the Sammelan campus
is lying vacant, open and unutilised till today, that is for thirty two years.
This will have a direct impact on the alleged need of the Sammelan of the land
propsed to be acquired. At the time of taking over the school building, the
Sammelan had contemplated putting up a museum. That again is the purpose for-
which the land involved in this appeal is sought to be acquired at the instance
of the Sammelan. When this rather disturbing position emerged on analysis and
evaluation of uncontroverted facts, it was suggested that the Sammelan wanted
to construct a building for Natyashala and Rangmanch for which plans have not
been prepared. All these inconvenient facts found reflection in the order sheet
of the Collector dated September 3, 1973 in which it is stated that "since
the authorities of the Sammelan have capacity to approach the highest authority
of the democratic Government as is evident from the letters received from their
office, the office is not capable to offer any comments whatever might be the
proposal whether it is according to the rules or against the rules or the same
should be allowed to remain as it is etc." Later on the Sammelan stated
that after the land is acquired, it would be utilised for implementation of
some new schemes. Thus though the Sammelan indisputably had and has open land
in its possession from 1953 till 1973, it did not construct the museum for
which it had obtained land from the 1016 Allahabad Municipal Board. That apart
it again moved the Government for acquiring the land of the petitioner under
the pretext that it is needed for constructing a museum.
When the facts counter-indicated the
purported need, it came out with a suggestion that it proposed to construct
Natyashala and Rangmanch. One may in passing, a bit humourously note that
Natyashala is a place where dramatic performances are staged and Rangmanch is a
place where dances are performed. The Sammelan would put up with them.
That would show that such performances would
not be destructive of educational and cultural environment of the campus of the
Sammelan but a modern air-conditioned sound- proof cinema building would. We
leave this without comment.
But as these proposals failed to carry
conviction, its latest stand is that let the land come, they would devise
schemes for its proper utilisation as and when the land is made available. This
demonstrates the hollowness of the alleged need and removes the veil thereby
disclosing the real purpose for acquiring the land.
Mr. Kacker urged that quitting the quibbling
so far resorted to, the Court may examine a forthright submisson that the
Sammelan's interest in getting the land acquired is not merely to construct Sangrahalya
but it is equally if not more interested in not having a cinema theatre at the
place where it is being constructed. Shorn of embellishment, the Sammelan would
not tolerate the theatre and therefore when it failed to thwart the grant of
certificate of approval and cinema theatre came up, it took the second step to
achieve the first mentioned object viz. seek acquisition of land to satisfy an
imaginary or non-existent need. The challenge on the ground of legal mala fides
to the validity of the notification under Sec. 4 (1), a preliminary step in the
process of acquisition has to be examined, evaluated and answered in the
backdrop of these facts.
It can be stated without fear of
contradiction that need of the land for Sangrahalya is a figment of imagination
conjured up to provide an ostensible purpose for acquisition. There is enough
land roughly admeasuring 7315 sq. yds. Lying vacant and unutilised with the
Sammelan for over a quarter of a century. The Sangrahalya has not come up
though this was the land which was taken from the Municipal Board for the
avowed object of putting up a Sangrahalya. The Sammelan moved on to Rangamanch
and Natyashala and then ultimately adopted a position that when the land is
made available, 1017 schemes will be devised for its proper use. Could it be
said with confidence that the Sammelan was ever interested in acquiring the
land for effectuating any of its objects. It has neither the plans nor the
wherewithals nor any specific object for which it needs land and it is unable
to use over years the land already available at its disposal. Therefore, Mr.
Kacker took bold and to some extent an imaginative stand. He said that in
seeking acquisition of the land, the Sammelan is actuated by a desire not to
have the cinema theatre in its vicinity or if it has come into existence, to do
away with the same. When these facts stare into the face, can it be said with
confidence that the Government or the Collector in whom the power to acquire
land is vested, exercised the power for the purpose for which it is vested or
are they guilty of legal mala fides.
The High Court disposed of the contention by
an over- simplification of this tangled web of facts without making the least
attempt at unearthing the real motives of the Sammelan- The tell tale facts
disclose motives and unravel hidden objects- The High Court by passed them by
simply observing that there is nothing on record to indicate that the Collector
or the State Government are inclined to act against the petitioner for any
improper motives. The High Court unfortunately missed the real contention of
legal mala fides, as also an important piece of evidence that the Collector on
whom the statute confers power to initiate proceeding for acquisition himself
was satisfied that Sammellan sought acquisition not because it requires the
land but it wants to stop or do away with the cinema theatre. This becomes
evident from the letter of the District Magistrate dated November 8, 1971.
It is well-settled that where power is
conferred to achieve a certain purpose, the power can be exercised only for
achieving that purpose. Sec. 4 (1) confers power on the Government and the
Collector to acquire land needed for a public purpose. The power to acquire
land is to be exercised for carrying out a public purpose. If the authorities
of the Sammelan cannot tolerate the existence of a cinema theatre in its
vicinity, can it be said that such a purpose would be a public purpose ? May be
the authority of the Sammelan may honestly believe that the existence of a cinema
theatre may have the pernicious tendency to vitiate the equcational and
cultural environment of the institution and therefore, it would like to wish
1018 away a cinema theatre in its vicinity. That hardly constitutes public
purpose. We have already said about its proclaimed need of land for putting up
Sangrahalya. It is an easy escape route whenever Sammelan wants to take over
some piece of land. Therefore, it can be fairly concluded that the Sammelan was
actuated by extraneous and irrelevant considerations in seeking acquisition of
the land the statutory authority having known this fact yet proceeded to
exercise statutory power and initiated the process of acquisition. Does this
constitute legal mala fides Where power is conferred to achieve a purpose it
has been repeatedly reiterated that the power must be exercised reasonably and
in good faith to effectuate the purpose. And in this context 'in good faith'
means 'for legitimate reasons'. Where power is exercised for extraneous or
irrelevant considerations or reasons, it is unquestionably a colourableq
exercise of power or fraud on power and the exercise of power is vitiated. If
the power to acquire land is to be exercised, it must be exercised bona fide
for the statutory purpose and for none other. If it is exercised for an
extraneous, irrelevant or non-germane consideration, the acquiring authority
can be charged with legal mala fides In such a situation there is no question
of any personal ill- will or motive. In Municipal Council of Sydney v.
Compbell(1) it was observed that irrelevant
considerations on which power to acquire land is exercised, would vitiate
compulsory purchase orders or scheme depending on them. In State of Punjab v.
Gurdial Singh & Ors (2) acquisition of land for constructing a grain market
was challenged on the ground of legal malafides Upholding the challenge this
Court speaking through Krishna Iyer, J. explained the concept of legal
malafides in his hitherto inimitable language, diction and style and observed
as under:
"Pithily put, bad faith which
invalidates the exercise of power-sometimes called colourable exercise or fraud
on power and oftentimes 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 fulfilment of
a legimate object the actuation or cataly- (1) [1925] A.C. 338 at 375.
(2) [1980] 1 S.C.R. 1071.
1019 sation 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 custdian 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." After analysing the factual
matrix, it was concluded that the land was not needed for a Mandi which was the
ostensible purpose for which the land was sought to be acquired but in truth
and reality, 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. The notification was declared invalid on the ground that it suffers
from legal mala fides. The case before us is much stronger, far more disturbing
and unparalelled in influencing official decision by sheer weight of personal
clout. The District Magistrate was chagrined to swallow the bitter pill that he
was forced to acquire land even though he was personally convinced there was no
need but a pretence- Therefore, disagreeing with the High Court, we are of the
opinion that the power to acquire land was exercised for an extraneous and
irrelevent purpose and it was colourable exercise of power, namely, to satisfy
the chagrin and anguish of the Sammelan at the coming up of a cinema theatre in
the vicinity of its campus, which it vowed to destroy. Therefore, the impugned
notification has to be declared illegal and invalid for this additional ground.
The validity of the impugned notification was
also challenged on the ground that even though the acquisition is for the
Sammelan, a company, the notification was issued without first complying with
the provisions of rule 4 of the Land Acquisition (Companies) Rules, 1963. The
High Court has negatived this challenge. We must frankly confess that the
contention canvassed by Mr. Nariman in this behalf would necessitate an indepth
examination of the contention.
However, we consider it unnecessary in this
case to undertake this exer- 1020 cise because the judgment of the High Court
is being upheld for the additional reason that the acquisition in this case was
mala fide. Therefore, we do not propose to examine the contention under this
head.
For the reasons which appealed to the High
Court and for the additional reasons herein stated, the appeal preferred by the
Collector and the District Magistrate and another fails and is dismissed while
the appeal on the grant of special leave to the petitioner is hereby partly
allowed to the extent herein indicated. Substantially, the Civil Appeal No.
2458 of 1975 fails and is dismissed with no orders as to costs.
S.R. Appeal dismissed and Petition allowed.
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