State of Madhya
Pradesh Vs. Narmada Bachao Andolan & ANR
O R D E R
J.M. PANCHAL, J.
1.
The
respondent Narmada Bachao Andolan (hereinafter called as NBA) has filed the aforesaid
applications for expunging certain adverse remarks made in paragraphs 2129-132
and 145 of the judgment and order in the aforesaid civil appeals dated
11.5.2011.
2.
These
applications have been filed on the grounds that adverse remarks made against the
applicants are unwarranted and uncalled nor based on any material/evidence on record.
More so, they were not necessary to adjudicate upon the controversy involved in
the appeals. Thus, the same may be expunged. In the said appeals, a large
number of factual and legal issues had arisen. However, this court was
concerned with acquisition of land to the extent of 284.03 hectares falling in 5
villages named therein for the reason that the State authorities had taken a decision
to abandon the land acquisition proceedings and not to conclude the same. Before
the High Court the applicants had pleaded that order of the Authorities to
abandon the proceedings was void ab-initio as possession of the land in dispute
had already been taken. The High Court came to the conclusion that as the possession
of the land in dispute had already been taken it was not permissible for the
appellants herein to resort to the 3provisions of Section 48 of the Land Acquisition
Act, 1894 (hereinafter called 1894 Act).
3.
When
the matter came in appeal before this Court, the factual controversy arose as to
who was in actual physical possession of the land. The NBA had taken a stand
that as the tenure holders of the said land had already been dispossessed the question
of abandoning the land acquisition proceedings could not arise. The State authorities
submitted that actual physical possession is still with the tenure holders and the
stand taken by the NBA was not factually correct. It was in view thereof that this
court on 24.2.2011 passed the following order: "The learned counsel appearing
for the parties would be at liberty to submit their written submissions within
10 days from today in SLP(C) Nos. 31047-31061/2009 & SLP(C) Nos. 34195- 34209/2009.
However, during the course of hearing it has been seriously contended by the State
of M. P. that actual physical possession of the land ad-measuring 284.03 hect.
falling in five villages viz. Dharadi, Kothmir, Narsinghpura, Nayapura and
Guwadi has not been taken by the State, in spite of resorting to acquisition proceedings
to a certain extent. This fact has been seriously refuted by respondent No.1 i.e.
Narmada Bachao Andolan and it has been contented that actual physical possession
has been taken, which is projected in various documents including the affidavits
sworn by the oustees/cultivators of the said land. They have also placed
reliance on the entries in the revenue records which reflected the position
that the Executive Engineer of the Company was in possession of the said land measuring
284.03 hect. also. In the light of serious contentions raised by both the
parties it is in fact not possible for us to come to a definite conclusion as
to who is in actual possession of the land today. In view of this, we deem it fit
and proper to request the learned District Judge, Indore to make a spot
inspection and submit his report with regard to the land ad-measuring 284.03 hect.
situated in the aforesaid five villages. Before going to the spot, he will inform
the parties concerned so that they may, if so desire, remain present at the time
of inspection and render proper assistance in identifying the land in question.
We clarify that we are not concerned with the total land of those villages, rather
the controversy is limited to 284.03 hect., which the State does not want to
acquire. It may also be mentioned in the report as to whether there is any crop
standing on the said land or part of it and if it is so, who had sown the crop.
If the crop has recently been removed or land has been tilled, who has done so.
Let the report be submitted by the District Judge within a period of 15 days from
the date of communication of this order."
4.
Such
an order was necessary for the reason that the affidavit filed on behalf of `NBA'
dated 1.7.2010 clearly provided that the order passed by the authorities dated 2.4.2009,
not to acquire the land of the villages was a 5nullity and void ab-initio
because the possession of the land had already been taken in December 2007.
5.
In
pursuance of the said order, the District Judge, Indore videographed the entire
land in dispute and recorded the statements of the tenure-holders in the presence
of the representative of `NBA' and came to the conclusion that the tenure-holders
were in actual physical possession of the said land.
6.
The
copy of the report along with CDs were supplied to the parties. They were given
opportunity and they availed the same by filing objections thereto and advanced
their arguments. It was after considering the same, the matter was decided,
wherein finding has been recorded that as the report was prepared in presence of
the representative of `NBA', the same was worth acceptance and it was in view thereof,
further a finding was recorded that the claim made by the `NBA' regarding the physical
possession of the land was not factually correct. The `NBA' had been afforded
full opportunity to make out the case. Their past conduct was 6also pointed out
and dealt with in paragraph 133 of the judgment dated 11.5.2011.
7.
In
fact the application filed by the State under Section 340 of the Code of Criminal
Procedure, 1973 (hereinafter called Cr.P.C.) was at a later stage, i.e. on 31.3.2011
and this court has not decided the same. Therefore, the contents of that application
or issuance of notice on the same did not have any bearing so far as the main
judgment is concerned.
8.
It
is in this background the submissions have been advanced by Shri Rajinder Sachar,
Shri Rajiv Dhavan, learned senior counsel and Shri Sanjay Parikh that there was
no occasion for the court to pass the adverse remarks in the aforesaid
paragraphs of the judgment as it amounts to black listing the NBA. The NBA had
taken a consistent stand throughout the proceedings that the word `possession' denotes
different meanings so far as the 1894 Act and R & R Policy are concerned.
In law it may be permissible under the 1894 Act that a person may be dispossessed
but he may continue in possession because of the R & R Policy. Therefore, adverse
remarks have been made by this court under total misconception and the same be
expunged.
9.
On
the contrary, Shri P.S. Patwalia, learned senior counsel has vehemently opposed
the applications contending that NBA cannot be permitted to make a totally new
case. The only issue involved had been as who was in actual physical possession
of the land and had it been the case of NBA that the tenure holders were not in
possession of the land, question of appointing the Commissioner i.e. District
Judge, Indore would not have arisen. Accepting the submissions made by the
applicants would render the order dated 24.2.2011 insignificant/meaningless as a
futile exercise. Thus, the applications are liable to be rejected.
10.
In
State of U.P. v. Mohammad Naim, AIR 1964 SC 703, this Court was asked by the State
of U.P. - the appellant, to quash the adverse remarks made by the High Court of
Allahabad against the police department as a whole e.g.- "That there is
not a single lawless group in the whole of the country whose record of crime
comes anywhere near the 8record of that organised unit which is known as the
Indian Police Force." This Court held that the court in its inherent jurisdiction
can expunge the adverse remarks suo moto or even on application of a party. However,
there must be a ground for expunging as such remarks were not justified, or were
without foundation, or were wholly wrong or improper and expunging thereof is
necessary to prevent abuse of the process of the court or otherwise to secure the
ends of justice. However, the court must bear in mind that such jurisdiction being
of exceptional nature must be exercised only in exceptional cases. The cardinal
principle of the administration of justice requires for proper freedom and independence
of Judges and such independence must be maintained and Judges must be allowed to
perform their functions freely and fairly and without undue interference by
anybody, even by this Court. However, it is also equally important that in
expressing their opinions the Judges must be guided by consideration of
justice, fair play and restraint. It should not be frequent that sweeping generalisations
defeat the very purpose for which they are made. Thus, it is relevant to
consider:
a. whether the party whose
conduct is in question is before the court or has an opportunity of explaining
or defending himself;
b. whether there is evidence
on record bearing on that conduct justifying the remarks; and
c. whether it is
necessary for the decision of the case, as an integral part thereof, to animadvert
on that conduct.
11.
This
view has been persistently approved and followed by this Court as is evident from
the judgments in Jage Ram, Inspector of Police & Anr. v. Hans Raj Midha,
AIR 1972 SC 1140; R.K. Lakshmanan v. A.K. Srinivasan & Anr., AIR 1975 SC
1741; Niranjan Patnaik v. Sashibhusan Kar & Anr., AIR 1986 SC 819; Major General
I.P.S. Dewan v. Union of India & Ors., (1995) 3 SCC 383; Dr. Dilip Kumar Deka
& Anr. v. State of Assam & Anr., (1996) 6 SCC 234; and State of Maharashtra
v. Public Concern for Governance Trust & Ors., AIR 2007 SC 777.
12.
Thus,
the law on the issue emerges to the effect that the court may not be justified in
making adverse remarks/passing strictures against a person unless it is necessary
for the disposal of the case to animadvert to those aspects in regard to the
remarks that have been made. The adverse remarks should not be made lightly as it
may seriously affect the character, competence and integrity of an individual in
purported desire to render justice to the other party.
13.
In
the case, at hand, the Court had not to decide the issue of justification of
the tenure-holders for retaining the possession of the land rather the question
was, as who is in actual physical possession of the land. Had it been the case of
justification of retaining the possession of the land by the tenure-holders without
being rehabilitated, the question of appointing the Commissioner i.e. District Judge,
Indore, would not have arisen.
14.
Observations/remarks
made in the judgment dated 11.5.2011 are based on the pleadings taken into 1consideration
as has been taken note of in paras 114 and 115 which mainly read as under: "114.
The High Court while dealing with the said applications did not deal with the issue
specifically as to whether the possession of the land has actually been taken
or even symbolic possession has been taken by the State; as to whether the
persons interested have been evicted from the said land; or they have voluntarily
abandoned their possession; or they are still in physical possession of the
land; or as to whether after being evicted they had illegally encroached upon the
land in dispute. A direction has been issued observing as under: "The lands
in these 5 villages of the oustees were acquired by notifications issued under
the Land Acquisition Act, and the NVDA has now passed an order on 2.4.2009 saying
that the land/property of these 5 villages shall not be acquired and the action
taken till now be dropped as per the provisions of law.......The respondents, therefore,
will have to provide all the rehabilitation benefits to the villagers of the 5 villages
and for the purpose of rehabilitation, the order dated 2.4.2009 of the NVDA is
of no consequence. The two IAs stand disposed of." 115. The appellants herein
have raised an objection that the tenure holders of the said land are still in
actual physical possession and they had never been evicted. However, on behalf
of the respondent i.e. Narmada Bachao Andolan, Shri Alok Agrawal, Chief Activist
of the organisation, has filed the counter affidavit dated 1.2.2010 before this
Court, wherein it has specifically been mentioned as under:
(a)
........
(b)
The order dated 2.4.2009 as not to acquire the land of the five villages is a nullity
and void ab initio because the possession of the lands has already been taken. The
land has already vested in the State. This may be seen from the judicial orders
of Reference Courts Devas; the land record of the revenue authorities of the
State Government, the order of the Land Acquisition Officer and the affidavits of
the concerned oustees which were placed on record before the said authorities.
(c)
.....
(d)
.....
(e)
......
(f)
......
(g)
......
(h)
The oustees of the five villages had filed a large number of affidavits before the
authorities/courts concerned stating that possession of their lands/properties acquired
had been taken in December 2007. (Emphasis added)
15.
Thus,
in view of the above, the arguments advanced on behalf of the applicants are not
justified. The applicants cannot be permitted to make out a new case to justify
expunging of adverse remarks. More so, while making certain observation against
the `NBA' the guidelines laid down by this Court in Mohd. Naim (Supra) had
strictly been observed. Remarks have been made as it was necessary to do so while
deciding the controversy involved therein. The submissions so made are not
worth acceptance. However, learned counsel appearing for the applicants have
submitted that the NBA has rendered great service for a long number of years to
the down trodden and poor farmers and thus NBA should not be deprived of the opportunity
to represent poor peasants. Mr. Sanjay Parikh learned counsel has expressed remorse
on behalf of the applicants that the applicants ought to have acted with more
responsibility.
16.
In
view of the above, para 145 of the judgment stands modified to the extent as
under: "In view of the above, we reach the inescapable conclusion that the
NBA has not acted with a sense of responsibility and not taken appropriate pleadings
as required in law. However, in a PIL, the court has to strike a balance between
the interests of the parties. The court has to take into consideration the pitiable
condition of oustees, their poverty, inarticulateness, illiteracy, extent of backwardness,
unawareness also. It is desirable that in future the court must view
presentation of any matter by the NBA with caution and care, insisting on proper
pleadings, disclosure of full 1 facts truly and fairly and should insist for an
affidavit of some responsible person in support of facts contained
therein."
17.
With
these observations, the applications stand disposed of.
...........................J.
(J.M. PANCHAL)
...........................J.
(DEEPAK VERMA)
...........................J.
(Dr. B.S. CHAUHAN)
New
Delhi
September
29, 2011
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