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CASE NO.: Appeal (civil)  1979 of 2008

PETITIONER: M/s. Girias Investment Pvt.Ltd. & Anr

RESPONDENT: State of Karnataka & Ors

DATE OF JUDGMENT: 13/03/2008

BENCH: TARUN CHATTERJEE  & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

                       CIVIL APPEAL NO 1979 / 2008                         (arising out of SLP) No. 21826/2007)

HARJIT SINGH BEDI,J.

1.      Leave granted. 2.          This appeal arises out of the following facts. 3.          The 3rd respondent, the Karnataka Industrial Area  Development Board (hereinafter called the ’Board’) issued a  Notification dated 6th April 2004 under Section 28(1) of the  Karnataka Industrial Area Development Board Act, 1966 (for  short the ’Act’) proposing acquisition of land bearing serial  Nos. 114,115 and 116 in village Kannamangala for the  purpose of constructing a trumpet interchange and access  road from National Highway No. 7 to the Bangalore Airport.   This land was notified for acquisition on the basis of a  comprehensive feasibility report submitted by the Technical  Consultant for the project, Sikon Private Ltd.   The Karnataka  State Industrial Investment and Development Corporation (for  short "KSIIDC") in the meantime proposed a change in the  location of the trumpet interchange and the access road on the  ground that only 53 Acres of land needed for these two  projects whereas the Notification was dated 6th April 2004  pertaining to 80 acres and 27 gunthas was far in excess of the  requirement and therefore suggested reconsideration of the  matter.  Vide letter dated 24th August 2004 the Bangalore  Airport Ltd. informed the KSIIDC that the proposed location of  the trumpet interchange and the access road was final and  that there was no reason to make a change in their alignment.   Notwithstanding the aforesaid communication the Board  issued a fresh Notification under section 28(1) of the Act on   5th December 2005 releasing the land proposed to be acquired  by the earlier Notification dated 6th April, 2004, and proposing  acquisition of the land bearing serial Nos.118-119.  The  appellants who had in the meanwhile purchased the aforesaid  land vide two Registered Sale Deeds dated 23rd and 26th  November 2005 appeared in the enquiry under Section 28(3) of  the Act before the second respondent i.e. the Special Land  Acquisition Officer and submitted their objections, inter-alia,  pointing out that the land now notified for acquisition had  been converted to non-agricultural use by orders of the  Revenue Authorities and that they proposed to put up a  commercial complex at that place.  They also pointed out that  that there were other alternative Government lands available  for construction of the trumpet interchange and access road

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which could be utilized thus sparing the lands of the  appellants from acquisition.   The second respondent,  however, overruled the objections on various grounds  particularly highlighting that the change had been  necessitated as the earlier proposal had not been found to be  technically sound.  The Board also issued a notification dated  3rd June 2006 under section 28(4) of the Act acquiring the  land belonging  to the appellants.  The appellants thereupon  filed a writ petition challenging the acquisition primarily on  the ground that a large chunk of Government land was  available which could be utilized and that the acquisition of  private land was therefore not justified.  It was also pleaded  that the second respondent had not given a personal hearing  to the appellants as envisaged under section 28(3) of the Act  and that the reports submitted by the said respondent to the  State Government did not adequately meet the issue raised  before him.  It was also submitted that the acquisition was  motivated by malafides as there were no sound and technical  reasons for the sudden change in the alignment that was now  proposed.  The learned Single Judge in his judgment and  order of 9th August 2007 found that the allegations of  malafide had not been made out and the contention that the  personal hearing envisaged under section 28(3) of the Act had  not been given also deserved to be rejected.  The learned Judge  also opined that the change had been necessitated on account  of technical reasons and having held as above, dismissed the  writ petition.  The matter was then taken in appeal before the  Division Bench.  Similar arguments were raised before the  Bench which in its judgment dated 20th September 2007 held  as under: "On a thorough consideration of the  documentary material and the  submission made at the Bar, we are of  the view that the proposed change of  locating T.I & A.R by the   1st respondent  is well-founded based on sound technical  reasons.  It may be that because of  change of location, the appellants might  lose lucrative and prime property but  nonetheless the individual interests have  to yield to the public demands and public  needs.  If the lands are converted to non- agricultural purpose, the appellants do  get the market value for their property.   Therefore, we do not find any reason to  hold that the proposed change of location  of the T.I  & A.R is actuated with any  malafides.

       The appellant makes only a vague  statement of alternate availability of the  Government lands without precisely  pointing out the particulars of the  Government lands which can suitably  satisfy the needs.  The contention that  there are alternate Government lands  available for construction of T.I & A.R  without need of acquisition of other  private lands, is not substantiated by any  credible material.

       The proceedings of the enquiry  dated 16.1.2006 of the 2nd respondent  discloses that the appellants were present  in the enquiry, submitted written

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objections with documentary materials.   The acquisition is resisted on the ground  that the lands are converted for non- agricultural purpose and that they have  borrowed loan from Andhra Bank for  putting up a shopping complex.  The  appellants have not requested the 2nd  respondent for an opportunity of further  hearing in the matter.  It appears from  the proceedings that the appellants had  nothing more to say than what is stated  in their objection statement.  There is no  request for further personal hearing.   Therefore, it cannot be said that  the 2nd  respondent did not provide necessary  opportunity of personal hearing as  required under Section 28(3) of the Act  and the finding of the learned Single  Judge in this regard is sound and proper.   We find no merit in the appeal.  Hence,  dismissed.

4.      It is in this situation that the present appeal is before us  by way of special leave.    5.      Mr. Dushyant Dave, the learned senior counsel for the  appellants has reiterated the arguments that had been raised  earlier.  He has pointed out that the action of the respondents  in changing the location of the interchange and the access  road which had led to the acquisition of the appellants land  was actuated by malafides and the explanation offered by the  respondents that this had been necessitated on account of  technical reasons was an after thought and not based on the  record.  He has pointedly stressed that in its letter of 24th  August 2004, the Airport Authority had emphatically denied  the need for a change and it was in explicable as to what had  prompted a reversal of the decision a few days later.  Mr. Dave  has accordingly placed reliance on Smt. S.R. Venkataraman  vs. Union of India & Anr. (1979) 2 SCC 491, State of  Punjab  vs. Gurdial Singh (1980) 2 SCC 471, Collector  (D.M.)  vs.  Raja Ram Jaiswal (1985) 3 SCC 1,  S.N.Patil  vs.  Dr. M.M. Gosavi & Ors. (1987) 1 SCC 227 and  B.E.M.L.Employees House Bldg Coop. Society Ltd. vs.  State of Karnataka (2005) 9 SCC 248 to argue that even in  cases of land acquisition the bonafides of the acquiring  authority had to be shown and that it was open to an  aggrieved party to plead malice in fact or law so as to avoid an  acquisition.  It has also been submitted that the personal  hearing envisaged under section 28(3) of the Act was akin to a  hearing under section 5-A of the Land Acquisition Act, 1894  and that in the absence of any such effective hearing the  acquisition was liable to fail.  It has been highlighted that the  appellants had requested for a personal hearing and it was  thus obligatory on the Collector to give one but he had bye- passed the provisions of section 28 (3) and directly made an  order under section 28(4) of the Act.  It has accordingly been  pleaded that in the light of the judgments reported in           Shri Farid Ahmed Abdul Samad  & Anr. Vs. The Municipal  Corporation of City of Ahmedabad and Anr. (1976) 3 SCC  719,  Rambhai Lakhabai Bhakt vs. State of Gujarat & Ors.  (1995) 3 SCC 752,   State of Rajasthan vs. Prakash Chand  & Ors. (1998) 6 SCC 1,  Union of India & Ors. vs. Mukesh  Hans  (2004) 8 SCC 14, Union of India & Ors. vs. Krishan  Lal & Ors. (2004) 8 SCC 453 and  Hindustan Petroleum  Cor.Ltd. Vs. Darius Shapur Chennai & Ors. (2005) 7 SCC  627 an acquisition made without giving an effective and

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meaningful personal hearing was liable to be quashed. 6.      The arguments raised by Mr. Dave have been strongly  controverted by the learned counsel for the respondents.  It  has been pointed out at the very outset that the allegations of  malafide were on the face of it unacceptable for the simple  reason that the proposal to change the alignment of the  trumpet interchange and access road had been initiated after  a complete technical re-survey and long before the date of the  sales in favour of the appellants and that in any case,  allegations of malafides had to be leveled against some  identified individual(s) who had to be impleaded as a party to  the litigation failing with the court was precluded from  examining this plea.   Reliance for this submission has been  placed on  Keshab Rao vs. State of West Bengal (1973) 3  SCC 216, First Land Acquisition Collector & Ors. vs.  Nirodhi Prakash Gangoli & Anr. (2002) 4 SCC 160,  Ajit  Kumar Nag  vs . G.M. (PJ) Indian Oil Corporation Ltd.,  Haldi & Ors. (2005) 7 SCC 764 and  Prakash Singh Badal &  Anr. Vs. State of Punjab & Ors. (2007) 1 SCC 1.  It has also  been pointed out that the personal hearing envisaged under  Section 28(3) had indeed been given and as a token of this  hearing the appellants had signed the relevant proceedings.       7.              It would be seen that the primary issue raised by  Mr. Dave pertains to the malafides in the acquisition of the  appellants land.  These allegations are sought to be proved by  inference on the premise (Mr. Dave’s second argument) that  the change had been made suddenly and without necessity  which showed the malafides of the respondents.  We,  therefore, deem it appropriate to take up the first two  arguments together.   It is Mr. Dave’s contention that on the  24th August 2004 the Airport Authority had itself ruled out any  change and as such, a complete volte face a week later showed  the malafides on the part of the respondents.   We are unable  to accept this argument as the facts depict quite a different  picture.   From the statement of objections filed on behalf of  the respondent No.1, the State of Karnataka before the  Karnataka High Court, we notice that the lands covered by the  Notification dated 6th April 2004 were proposed to be acquired  based on the tentative requirements indicated by the Airport  Authority in its letter dated 2nd December 2002.  After  issuance of the aforesaid Notification a letter was addressed to  the Airport Authority to reappraise the matter keeping in view  the  technical needs and requirements on which a team of the  Chief Executive Officer and Head Technical of the Airport  Authority, a representative of the KSIIDC and other local  revenue officials visited the site on 1st September 2004 and  noticed that there were some adverse ground conditions and  difficulties such as the existence of a large pond which  necessitated the change.  It also appears that there was a  great deal of correspondence between all concerned and the  final decision was taken to change the location of the trumpet  interchange and access road after due deliberation, as has  been revealed from the letters dated 22nd April 2005, 14th July  2005 and 19th July 2005.   Our pointed attention has been  brought to the letter of 19th July 2005 and we reproduce the  relevant contents hereinbelow: "Trumpet Interchange (TI) & Access Road:

       The earlier proposal envisaged acquisition  of 80 acres 27 guntas of land for TI and  Access Road from the National Highway  upto the airport boundary based on the  detailed study conducted by Bangalore  International Airport Ltd. (BIAL) in  consultation with the National Highway

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Authority of India (NHAI).  However, at the  time of physical survey of the land, certain  adverse ground conditions and difficulties  such as existence of large pond in the  alignment of the access road were  encountered.  This necessitated change in  the alignment of the access road and in  turn, the location of the TI.  In the  meanwhile, the issue of construction TI  through NHAI was discussed in the meeting  at the Prime Minister’s Office on 29.11.2004  and also in the meeting convened at NHAI  on 8.12.2004.  Based on the decisions taken  in these meetings, NHAI appointed  International Consultants and Technocrats  Pvt. Ltd. (ICT) to carry out the General  Alignment Drawing (GAD) as well as DP for  the TI.  Accordingly, GAD and a draft DPR  have been prepared by CT and submitted to  NHAI.  Based on these NHAI has confirmed  the details of coordinates of proposed right  of way (PROW) for land acquisition purpose  and set out data for accommodating two  future railway tracks.  A copy of the letter  dated 06.7.2005 received from NHAI in this  regard, is enclosed for ready reference  (Enclosure-I) .

               Based on these details, BIAL with  the assistance of M/s. Secon Surveys has  finalized the revised extent of land / Sy. No.  to be acquired and has confirmed vide their  letter dated 14.7.2005.  A copy of this letter  is also enclosed (Enclosure-II).

               The details of villages, Sy. No. and extent  in respect of modified requirement of lands  to be acquired for TI and Access Road as  confirmed by BIAL are enclosed for your  needful action (Enclosure-III).

8.     Mr. Dave’s peripheral argument that the change had  been made on account of the objections raised by the  prospective land losers of the first acquisition is also  unacceptable as this objection had been made only with  respect to the land proposed for the special runway, a fact  which had also figured in the letter dated 19th July 2005.  It  is the admitted position that the land had been purchased  by the appellants vide sale deeds dated 23rd November 2005  and 26th November 2005 i.e. long after the final decision  had been taken to acquire the land in the light of the  revised proposal.   It is also significant that in the objections  filed before the Land Acquisition Collector, no malafide  against any person has been alleged.  We also find that  malafides have been alleged in paragraph 4.9 of the  pleadings filed before the Karnataka High Court.  Paragraph  4.9 is reproduced hereunder. "4.9    It is important to note that lands  covered under Annexure-J and the lands  now sought to be acquired are adjacent to  each other.  However, apparently to help  the owners of the said lands sought to be  denotified as per Annexure-K and with  ulterior motives, there appears to be a  change of plan, for no ostensible reason

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at all, whereby instead of locating the  trumpet on the said Survey No.115, 116,  117, 121 (P) and 90 belonging to some  influential persons and Sy. No.73 vast  stretch of Government Gomal land, a  plan is hatched up to denotify all the said  survey numbers including  the  Government land in Sy. No. 73 and  acquire Schedule A and B lands  belonging to the 1st petitioner company.   This apparently has been done by certain  interested quarters in the respondents’  offices with ulterior motives with a view to  help and to the advantage of the owners  of the said lands and others, to the  detriment of the interest of the  petitioners.  A proposal, therefore,  appears to have been mooted for a  Trumpet interchange.  The proposal  interchange has been sought to be  followed up by proposal as could be seen  in Annexure-K, the revised details for  acquisition of lands, a true copy of which  is produced herewith as Annexure-K."

9.        These allegations have been replied to in  paragraphs 11 to 14 of the objections filed on behalf of the  State Government, respondent No.1.  These too are  reproduced: "11. It is submitted that, the extent and  location of land required for TI was  finalized after due consultation with  BIOAL, NHAI and also the Railway  Authorities after holding series of  meetings with the concerned authorities  in this behalf.  The process of acquisition  of lands required is completed.  It is  submitted that, there is only a national  interest involved in this project by all  concerned and the Project is certainly not  aimed at helping any specific parties or to  affect someone as alleged by the  petitioners in the Writ Petition at Paras  4.6, 4.9, 4.11, 4.12, 4.13 and 4.14 and  other parts of the Writ Petition.  It is  submitted that the allegations of  malafide, arbitrariness, highhandedness  etc., on the part of this respondent in  notifying Schedule.  A and B properties  for acquisition in the above case are  hereby emphatically denied as baseless  and without any foundation.   It is further  submitted that the said averments are  made by the petitioners to mislead this  Hon’ble Court.  The documents marked  as Annexure \026J and H in the Writ Petition  do not disclose the full facts of the case.   In this context, it is relevant to make a  mention about the correspondence  between BIAL and KSIIDC dated  24.8.2004, 30.3.2005, 22.4.2005,  14.7.2005 and 19.7.2005 and marked at  Annexures \026 R 1 to R.5 respectively with  enclosures therein.  These five documents  bring out the development, subsequent to

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the Notification of 7.4.2004, relied upon  by the petitioners.  As explained in  subsequent paragraphs of this petition,  these five documents explain the reason  for relocation of the TI.

12.     With regard to the averments made  in para 4.9 of the Writ Petition, it is not  correct to say that the lands covered  under Annexure-J to the Notification  dated 7.4.2004 and the lands now being  acquired are adjacent  to each other.  The  lands being acquired now are at a  distance of about 350 meters away from  the lands notified earlier.  The lands  covered in the Preliminary Notification  mentioned in Annexure-J were proposed  to be acquired based on the tentative  requirements indicated by BIAL in its  letter dated 2nd December 2002 and a  copy of the same is herewith produced  and marked as Annexure R6.   After  issuance of Preliminary Notification, a  letter was addressed to BIAL requesting  to review thoroughly the scheme and  reconfirm the access road alignment, TI  position and the corresponding  actual/exact extent of land required  therefore to initiate final action towards  acquisition of the required additional  lands.  Subsequently a team comprising  of the Chief Executive Officer and the  Head Technical of Bangalore  International Airport Limited, a  representative of KSIIDC and the local  revenue officials visited the site on 1st  September 2004 and during the  said  visi, it was noticed that there were certain  adverse ground conditions and difficulties  such as existence of  a large pond in the  alignment of the access road, regarding  existence of pond and the map are  produced herewith and marked as  Annexures R1 & R8 respectively.  Thus,  this aspect has necessitated marginal  change in alignment of the access road  and in turn the location of the TI.

13.     It is submitted that the petitioner  refers to the 1st Survey Report of Secon  dated 27.11.2002 (Annexure H) to the  Writ Petition but makes no reference to  the 2nd Revised Report of Secon dated  30.3.2005 (Annexure R-2 to this  Statement of Objections).  In the  Preliminary Notification dated 7.4.2004, a  total extent of 242 acres 27.5. guntas of  land covering 7 villages viz. Begur,  Hikkanahlli, Mylanahalli, and  Gangamuthanahalli were published.  In  letter dated 23.8.2004 of KSIIDC the BIAL  was requested to reconfirm the alignment  of access road/Trumpet Interchange.  As  already stated at para \026 12, at the request

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of KSIIDC a joint inspection by a team  comprising of the Chief Executive Officer  and the Head Technical of BIAL,  representative of KSIIDC and the local  revenue officials was done.  During the  visit it was observed that there were  certain adverse ground condition and  difficulties such as existence of a large  pond in the alignment of the access road  (Annexure R-3).  Accordingly, the Secon  furnished the   revised Survey Report on  30.3.2005 (Annexure R-2).  BIAL in its  letter dated 14.7.2005 confirmed the final  coordinates, Survey Nos. extent of land  etc.  It was on the basis of this final plan  for the TI that the KIADB issued  impugned Notification dated 5.12.2005.   Strangely, the writ petitioner has chosen  not to bring these facts to the notice of  the Hon’ble Court.  These facts clearly  indicate that the petitioner is stating the  facts to mislead this Hon’ble Court.

14.     With regard to the averments made  in para 4.12 of the writ petition, it is  submitted that Sy. No.133 belongs to  Sanjeevappa, son of K.Chowdappa  Anjanamma, wife of later Munlyappa  Venkatashamappa who are ordinary  citizens and not influential persons.   Lands of Survey Nos. 115, 116 and 117 of  Kannamangala Village which are  standing in the name of one  Gullamma,  wife of late R. Annaiah is also an ordinary  citizen and not influential person as  alleged by the petitioners.  Thus the  contention of the petitioners that there is  conspiracy either to help a few persons  owning certain pieces of land or to  deprive the petitioners of their valuable  lands with ulterior motives etc. is  untenable in law and also on facts.  It will  accordingly be seen that issuance of  Notification dated 2.6.2006 by this  respondent is in accordance with law and  came to be passed after observing and  following all the necessary formalities as  contemplated in the provisions of the  Karnataka Industrial Areas Development  Board Act, 1966.  It is submitted that as  regards the permission/clarification by  the Tahsildr, Devanahali Taluk from the  Assistant Commissioner, Doddaballapur  Sub-Division to auction portion of land in  Sy. No.73 of Kannamangala Village, the  matter is under consideration between  Revenue Department and KIADB.  No  final decision has yet been taken to  auction land in Sy. No. 73 is not required  as per modified alignment, the proposal  for auction was motted but no final  decision is yet taken.  In fact Sy. No.73  measures nearly 94 and odd acres.   It is  further submitted that the notice under  Section 28 (2) of the KIADB Act, 1966

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(hereinafter called the ’Act’) was issued in  the name of Sri N.R. Prakash.  This is so  because his name was shown as owner of  the said lands in the relevant land  records i.e. RTC obtained as on the date  of publication of Preliminary Notification  under Section 28(1) of the Act."

10.             The reply comprehensively dispels any indication of  malafides on the part of the respondents and categorically  bears out the circumstances and justification for the revised  proposal, and that no individual or party was responsible for  the alleged malafide change. 11.       It is obvious from a reading of the pleadings quoted  above that only vague allegations of malafides have been  leveled and that too without any basis.  There can be two ways  by which a case of malafides can be made out; one that the  action which is impugned has been taken with the specific  object of damaging the interest of the party and, secondly,  such action is aimed at helping some party which results in   damage to the party alleging malafides.  It would be seen that  there is no allegation whatsoever in the pleadings that the case  falls within the first category but an inference of malafide has  been sought to be drawn in the course of a vague pleading  that the change had been made to help certain important  persons who would have lost their land under the original  acquisition.  These allegations have been replied to in the  paragraph quoted above and reveal that the land which had  been denotified belonged to those who had absolutely no  position or power.  In this view of the matter, the judgments  cited by Mr. Dave have absolutely no bearing of the facts of the  case.   S.R.Venkataraman’s case (supra) was a case where a  Central Government officer challenged her premature  retirement in the High Court, making allegations of malafides  against one of her superior officers.  She then approached this  Court where the respondent Union of India conceded that  there was no material which could justify an order of  premature retirement, resulting in an order by this Court in  her favour.   In Gurdial Singh’s case (supra) it was found  that the acquisition of the land belonging to the petitioner was  on account of the malafides on the part of the Chief Minister of  the State as the land owner was a political rival.  In paragraph  10 it was observed as under: "By these canons it is easy to hold that  where one of the requisites of sections 4  or 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.  Not 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 \026 if the real object is the  illegitimate one of taking away the lands  of respondents 1 to 21 to vent the  hostility of respondent 22, under the

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mask of acquisition for the mandi."

12.             In  Raja Ram Jaiswal’s case (supra) several  questions including one of malafides were raised before the  Supreme Court.  The facts of the case are however tell-tale.  It  appears that the Hindu Sahitya Sammelan Parishad had  obtained a large piece of land from the Municipal Board in  1953 for constructing a Hindi Sangrahalaya but the land  remained unutilized for a long time.   The land belonging to  the respondent Raja Ram Jaiswal, who was apparently a well  connected individual, was in the immediate vicinity on which  he proposed to construct an air-conditioned cinema hall.  The  Parishad opposed the proposal on the ground that, that it  would be destructive of its cultural and academic  environment.  This objection was overruled by the District  Magistrate who granted the requisite certificate for the  construction of the cinema.  The Parishad thereafter made an  application to the Government for acquiring the respondent’s  land as it was needed for the purpose for the extension of the  Hindi Sangrahalaya although it later deviated from its stand  and suggested that the additional portion was needed for a  Natyashala and Rangmanch.  The Collector who was to initiate  the proceedings was apparently reluctant to do so on the plea  that the Parishad had sought the acquisition not because it  required the land but because it wished to stall the  construction of a cinema next door.  Notwithstanding the  aforesaid facts, a Notification under Section 4(1) of the Land  Acquisition Act was issued.  This Notification was challenged  and the matter ultimately came to the Supreme Court and this  is what the Court had to say: "It is well-settled that 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 needed for a  public purpose.  The power to acquire land  is to be exercised for carrying out 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  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.  We have already said about its  proclaimed need of land for putting up  Sangrahalaya.  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 and 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 ?

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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 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 mala  fides."  

13.             For arriving to its conclusion, the Court relied,  amongst others, on the judgments of this Court in Gurdial  Singh’s case aforesaid and on  S.N.Patil’s case (supra) where  again  specific allegations were made and proved against the  Chief Minister.  In BEML Employees  House Building Co- operative Society Ltd.’s case (supra) the acquisition was  quashed on the ground that the land belonging to some  persons who were similarly situated as the appellant, had  been released and that the State Government had been unable  to show any rational discrimination between the case of the  appellant and that of the other landowners and that this act  amounted to "hostile discrimination". 14.         It is no doubt open to the court to go into the question  of malafides raised by a litigant but in order to succeed, much  more than  a mere allegation is required.   Mr. Dave’s inference  of malafide based on the ground that the change in the  location of the trumpet interchange and the access road had  been suddenly made without proper application of mind to  help certain unidentified individuals resulting in the  acquisition of the land belonging to the appellants is, thus,  without any factual basis.   15.             Mr. Hulla, the learned counsel appearing for some  of the respondents has also placed reliance on Keshab Rao vs.  State of West Bengal (1973) 3 SCC 216, First Land  Acquisition Collector & Ors. vs. Nirdohi Prakash Ganguli &  Anr. (2002) 4 SCC 160, Ajit Kumar Nag  vs. G.M.(PJ)  I.O.C.Ltd., Haldi & Ors. (2005) 7 SCC 764 and Prakash  Singh Badal & Anr. Vs. State of Punjab and & Ors. (2007) 1  SCC 1 to submit that a mere allegation of malafide is not  enough and cogent evidence thereof must be given.  We  respectfully endorse the opinion expressed in these judgments  and reiterate that no material or details of malafides have  come on record in the present case. We nevertheless quote  paragraphs 56 and 57 from Ajit Kumar Nag’s case (supra)  to  support our discussion:

56. In our view, neither the learned Single  Judge nor the Division Bench has committed  any error of law and/or of jurisdiction which  deserves interference in exercise of  discretionary jurisdiction under Article 136 of  the Constitution. As is clear, the situation has  been created by the appellant. It was very  grave and serious and called for immediate  stern action by the General Manager. Exercise  of extraordinary power in exceptional

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circumstances under Standing Order 20(vi) in  the circumstances, cannot be said to be  arbitrary, unreasonable or mala fide. It is well  settled that the burden of proving mala fide is  on the person making the allegations and the  burden is "very heavy". (vide E.P. Royappa v.  State of T.N. ( 1974) 4 SCC 3) There is every  presumption in favour of the administration  that the power has been exercised bona fide  and in good faith. It is to be remembered that  the allegations of mala fide are often more  easily made than made out and the very  seriousness of such allegations demands proof  of a high degree of credibility. As Krishna Iyer,  J. stated in Gulam Mustafa v. State of  Maharashtra ((1976) 1 SCC 800  p.802, para 2)  : "It (mala fide) is the last refuge of a losing  litigant."

57. We hold clause (vi) of Standing Order 20  of the Certified Standing Orders of the  respondent Corporation valid, constitutional  and intra vires Article 14 of the Constitution.  We also hold the action taken by the General  Manager of the respondent Corporation  dismissing the appellant-petitioner from  service as legal and lawful. We thus see no  substance either in the appeal or in the writ  petition and both are, therefore, dismissed. In  the facts and circumstances of the case,  however, there shall be no order as to costs.

    In the light of the above, no further discussion on this  aspect is called for. 16.             The learned counsel for the respondents has also  taken pains to point out that in the absence of specified  individuals, who are to be made parties in a litigation alleging  malafides, an enquiry into such an allegation was  impermissible.  The learned counsel has placed reliance on  State of Bihar and another vs. P.P.Sharma, IAS & Anr.  (1992) 1 Suppl. SCC 222 and All India State Bank Officers’  Federation & Ors. vs. Union of India & Ors. (1997) 9 SCC  151.    In P.P.Sharma’s case (supra)  it was observed that :                 "It is a settled law that the person  against whom malafides or bias was  imputated should be impleaded eo nomine  as a party respondent to the proceedings  and given an opportunity to meet those  allegations.  In his/her absence no enquiry  into those allegations would be made.   Otherwise it itself is violative of the principle  of natural justice as it amounts to  condemning a person without an  opportunity."  

17.             A similar opinion was expressed in All India State  Bank Officers Federation & Ors. (supra) in the following  words:         "In view of the aforesaid explanation  of the respondent-Bank, which we see no  reason to disbelieve, it is clear that the  petitioners have made baseless and  reckless allegations of mala fide.   Respondents 4 and 5 obviously had no

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direct or indirect role to play either in the  formulation of the policy or in the  memorandum being placed as a table  item to be taken up for consideration in  the meeting held on 7.3.1999.  The  modification was approved by the  Chairman and all the Directors who were  present in the meeting of the Board.  For  an allegation of mala fide to succeed it  must be conclusively shown that  respondents 4 and 5 wielded influence  over all the members of the Board, who  were present in the said meeting.  No  such allegation has been made.  The  decision to modify the promotion policy  was taken by a competent authority,  namely, the Central Board in a duly  constituted meeting held on 7.3.1989 and  we are unable to accept that this change  in the policy was brought about solely  with a view to help Respondents 4 and 5.          There is yet another reason why  this contention of the petitioners must  fail.  It is now well settled law that the  person against whom mala fides are  alleged must be made a party to the  proceeding.  The allegation that the policy  was amended with a view to benefit  Respondents 4 and 5 would amount to  the petitioners contending that the Board  of Directors of the Bank sought to favour  Respondents 4 and 5 and, therefore,  agreed to the proposal put before it.   Neither the Chairman nor the Directors,  who were present in the said meeting,  have been impleaded as respondents.   This being so the petitioners cannot be  allowed to raise the allegations of mala  fides, which allegations, in fact, are  without merit."

18.      As observed above, the appellants have not identified  any person who had been instrumental in harming their  cause.  We would, therefore, even be precluded from going into  the question of malafides although we have nevertheless  examined the matter in extenso. 19.             Mr. Dave has argued with emphasis, that the  personal hearing envisaged to an interested person under  section 28(3) of the Act had in fact not been given to the  appellants and that the proceedings held by the Collector  pursuant to the notice dated 12th December 2005 were a mere  eye wash.  He has pointed out that as per the written  objections filed by the petitioner on 16th January 2006, a  specific request had been made for a personal hearing, but  notwithstanding the request the Collector gave his decision on  the objections on 2nd February 2006 and the final Notification  was issued on 2nd June 2006.  To supplement his argument  that in the absence of a personal hearing under section 5(A) of  the Land Acquisition Act, or section 28(3) of the Act stand  vitiated, Mr. Dave has placed reliance on Shri Farid Ahmad  Abdul Samad & Anr. Vs. The Municipal Corporation of City  of Ahmedabad & Anr. (1976) 3 SCC 719, Rambhai Lakhabai  Bhakt vs. State of Gujarat & Anr. (1995) 3 SCC 752, Om  Prakash & Anr. Vs. State of U.P. & Ors. (1998) 6 SCC 1,

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Union of India & Ors. vs. Mukesh Hans (2004) 8 SCC 14,  Union of India & Ors. vs. Krishan Lal & Ors. (2004) 8 SCC  453, Hindustan Petroleum Cor. Ltd. vs. Darius Shapur  Chennai & Ors. (2005) 7 SCC 627 and P.Naranayyapa &  Anr. Vs. State of Karnataka (2006) 7 SCC 578.  Concededly,  Section 28 (3) of the Act gives a right of personal hearing to the  owner of the land or any other interested person and the  judgments cited by the learned counsel therefore eminently  support the appellant’s case.  The question as to whether an  effective personal hearing was given or not, however is a  question of fact and we notice from a perusal of the record  that such hearing was indeed given and that the appellant had  exercised his rights thereunder and it was only after the  procedure under section 28(3) had been followed, that the final  Notification had been issued.  We find that the learned Single  Judge and the Division Bench of the High Court have given  categorical findings against the appellant on this score and we  have no reason to differ therefrom.   We have nevertheless  examined the record to re-assure ourselves as to the  correctness of the High Court’s decision.  After the  objections/documents had been filed, the file was taken up by  the Collector on 16th January, 2006 on which date Shri N.R.  Prakash representing the land owners was not present. The  Collector, after examining the facts of the case,  adjourned the  case to 24th January 2006 for ’orders’ in accordance with  Section 28(3) of the Act and the final orders on the  proceedings under section 28(3) of the Act were, in fact, made  on the 2nd February 2006.  Mr. Dave has emphasized that as  the matter had been adjourned  on 16th January 2006 for  ’orders’  there was absolutely no justification in finalizing the  proceedings on 2nd February 2006 without giving a hearing to  the appellants.  We observe, however, that merely because the  word ’orders’ has been recorded in the proceedings of           16th January 2006, it does not imply that the matter remained  incohate or that it envisaged a further hearing.  The record  shows that comprehensive objections alongwith documents  had been filed by the appellants on 16th January 2006 wherein  after stating the history as to how they had become owners of  the land they had given their objections to its acquisition and  in paragraphs 19 and 21 stated as under:

       "In the event of your requiring any  clarification, we also request you to offer us  a personal hearing in the above matter for  us to place the above facts for your kind  consideration.

We do hope that justice would be done  and valuable investment in the land would  be protected and we are permitted to carry  on the construction of the Shopping  Complex as planned towards which the  necessary finance have been made available  to us by Andhra Bank.

We have to request you to provide us with  a personal hearing in the matter, as also  permit us to file any other documents or  additional statements as may be required".

20.          The aforesaid paragraphs clearly reveal that the  request for a personal hearing was conditional in that if a  clarification or additional documents were required, time for  that purpose be given.  It is also significant that the objections

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filed by the appellants form (almost exclusively) the basis for  the present writ petition inasmuch the fact that there was no  need for the change of the alignment of the trumpet  interchange and the access road or that alternative land was  available for that purpose, had been spelt out therein.  The  Collector in dealing with the objections had observed that  several objections/documents had been filed by the appellants  but were liable to rejection as the acquisition was necessary  for the Bangalore Airport.  We are also not mindful of the fact  that though the rights of an individual whose property is  sought to be acquired must be scrupulously respected, an  acquisition for the benefit of the public at large is not to be  lightly quashed and extraordinary reasons must exist for doing  so.  This is the ratio of the judgment of this Court in  Ramniklal N.Bhutta & Anr.  Vs. State of Maharashtra &  Ors. (1997) 1 SCC 134 wherein it has been held as under:

       "Whatever may have been the  practices in the past, a time has come  where the courts should keep the larger  public interest in mind while exercising  their power of granting stay/injunction.   The power under Article 226 is  discretionary.  It will be exercised only in  furtherance of interests of justice and not  merely on the making out of a legal point.   And in the matter of land acquisition for  public purposes, the interests of justice  and the public interest coalesce.  They  are very often one and the same.  Even in  a civil suit, granting of injunction or other  similar orders, more particularly of an  interlocutory nature, is equally  discretionary.  The courts have to weigh  the public interest vis-‘-vis the private  interest while exercising the power under  Article 226 \026 indeed any of their  discretionary powers.  It may even be  open to the High Court to direct, in case  it finds finally that the acquisition was  vitiated on account of non-compliance  with some legal requirement that the  person interested shall also be entitled to  a particular amount of damages to be  awarded as a lump sum or calculated at  a certain percentage of compensation  payable.  There are many ways of  affording appropriate relief and  redressing a wrong; quashing the  acquisition proceedings is not the only  mode of redress.  To wit, it is ultimately a  matter of balancing the competing  interests.  Beyond this, it is neither  possible nor advisable to say.  We hope  and trust that these considerations will  be duly borne in mind by the courts while  dealing with challenges to acquisition  proceedings."

21.    We thus find no merit in the appeal.  Dismissed.  There  will be no order as to costs.