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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: GURDIAL SINGH & ORS.

DATE OF JUDGMENT25/10/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR  319            1980 SCR  (1)1071  1980 SCC  (2) 471  CITATOR INFO :  RF         1981 SC 818  (62)  D          1984 SC1020  (8)  R          1985 SC1622  (26)  RF         1987 SC 877  (16)  D          1988 SC1459  (14)  R          1992 SC 604  (144)

ACT:      Land Acquisition  Act 1894 (1 of 1894), Ss 4, 5A, 6 and 17-Land acquisition  High Court  held state action malafide- same land  acquired later  under emergency  power dispensing with statutory enquiry-Acquisition-Validity of.      Land acquisition  proceedings-Allegation by  land owner that statutory  power misused to satisfy personal ends of an individual  with   political  influence   -  No  attempt  to contradict allegation  despite opportunity  being  afforded- malafides-If proved.

HEADNOTE:      In 1962,  a site  was chosen for a grain market and the foundation stone  for it  was laid.  This spot belonged to a cousin  of  Respondent  No.  22,  an  ex-  Minister  and  an influential politician.  This spot  was eventually abandoned in favour  of the  lands of  Respondents Nos. 1 to 21, which were  notified   in  1971.   The  landowners   resisted  and successfully impeached the acquisition on the ground of mala fides before the High Court.      After a  long interval, the State initiated acquisition proceedings in  respect of  the same  land  a  second  time, invoking the  emergency powers  under Section 17 of the Land Acquisition Act.      The Respondents  Nos. 1  to 21 assailed the acquisition before the High Court on the ground that the statutory power to acquire  land had  been misused  to satisfy  the personal ends of  Respondent No.  22 and that the acquisition was not for a  legitimate statutory  purpose. The  High Court struck down the ’declaration’, and invalidated the acquisition.      Dismissing the Special Leave Petition of the State, ^      HELD:      Krishna Iyer, J.)      1. It  is fundamental that compulsory taking of a man’s

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property is  a serious  matter and  the smaller  the man the more serious the matter. Hearing him before depriving him is both reasonable  and preemptive of arbitrariness, and denial of this  administrative fairness  is constitutional anathema except for  good reasons.  Save in real urgency where public interest does not brook even the minimum time needed to give a hearing,  land acquisition  authorities should not, having regard to Articles 14 (and 19), burke an enquiry under S. 17 of the Land Acquisition Act. [1078H-1079B]      In the  instant case  a slumbering process, pending for years and  suddenly exciting  itself into immediate forcible taking, makes a travesty of emergency power. [1079B] 1072      2. The power to select land for acquisition proceedings is left  to the  responsible discretion  of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what  it thinks  is  a  foolish  choice.  Wisdom  in administrative action  is the  property of the Executive and judicial circumspection  keeps  the  court  lock-jawed  save where  power  has  been  polluted  by  oblique  ends  or  is otherwise void on well-established grounds. [1075 F-G]      3. Legal  malice is  gibberish unless  juristic clarity keeps it separate from the popular concept of personal vice. Bad faith  which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and often times overlaps  motives,   passions,  and   satisfactions-is   the attainment of  ends beyond  the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use  of the  power is  for the  fulfillment of  a  legal object the  actuation  or  catalysation  by  malice  is  not legicidal. The  action is  bad where  the true  object is to reach an  end different  from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant  to the  entrustment. When  the custodian  of power  is  influenced  in  its  exercise  by  considerations outside those  for promotion  of which  the power is vested, the court  calls it  a colourable exercise and is undeceived by illusion. [1075H-1076C]      4. Fraud  on  power  voids  the  order  if  it  is  not exercised bona  fide for  the end  designed. Fraud  in  this context is  not equal  to moral  turpitude and  embraces all cases in  which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be  malice-laden or  even benign.  If  the  purpose  is corrupt the resultant act is bad. If considerations, foreign to the  scope of  the power  or extraneous  to the  statute, enter the  verdict or  impel the action, mala fides or fraud on power  vitiates the  acquisition or  other official  act. [1076 D-E]      In the  instant case  the moving  consideration was not that this  land was needed for the mandi, in the judgment of Government, but  that the  mandi need  was hijacked to reach the private  destination of  depriving an  enemy of his land through  back-seat   driving  of   the   statutory   engine. Respondent No. 22 when he became State Minister of Panchayat and Development  constituted a Selection Board and appointed himself as  President thereof.  The choice  was made  of the site belonging to Respondents 1 to 21 and lest the take-over delayed, even  the S5A  enquiry was scuttled by invoking the emergency power   S17.  At times,  natural  justice  is  the natural enemy  of intolerant authority. The judicial process under  Article   226  therefore,   rightly  invalidated  the acquisition on the ground of mala fide. [1076F, 1078 C-E]      5. This  court does  not upset a factual finding unless

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it is  upset by perverse assessment, absence of evidence and the like. [1077A]      6. Counsel in court are ’robed’ representatives, within the parameters of the adversary system, geared to the higher cause of justice, not amoral attorneys paid to ventriloquize the case  of the  principal. Every  ’lawless’ cause  brought recklessly before  the Court,  is  a  dubious  gamble  which blocks the  better ones  from getting speedy remedy. [1074E, 1073F] 1073 (Per Pathak J. concurring)      1. On  a conspectus  of the  material on  the record it does seem that the impugned acquisition proceeding cannot be sustained. There  is reason  to believe  that the  statutory power to  acquire  land  has  been  misued  to  satisfy  the personal ends  of the  Respondent No.  22, an individual who appears to  be not without considerable political influence. Despite  an   opportunity   afforded   to   controvert   the allegations made by the Respondents Nos. 1 to 21, no attempt has been made by him to contradict the allegations. [1079 E- F]      2. Whether  or not the deliberations which were said to have  led   to  the  selection  of  the  land  belonging  to Respondent Nos.  1-21, were  affected by  the  influence  or pressure of  the Respondent  No. 22 is a matter to which the officials or  members selecting  the  land  could  alone  be privy. In  the absence of any denial of the allegations made by the  Respondents Nos.  1 to  21 in the writ petition by a person having  personal and  direct knowledge in the matter, and having  regard to  the entire history of the case, it is difficult to resist the conclusion that the averments in the writ petition  alleging mala fides must be accepted. [1079H- 1080B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 1207 of 1978.      From the  Judgment and  Order dated  28-7-1977  of  the Punjab and  Haryana High  Court in  Civil Writ  No. 1457  of 1977.      Hardev Singh for the Petitioner.      S.K. Sabharwal and Subhash Sharma for the Respondents.      The following Orders were delivered:      KRISHNA IYER,  J.-Every meritless  petition for special leave commits  a double sin and here we are scandalized that the sinner  is the  State itself.  When thousands  of humble litigants are  waiting in  the queue  hungry for justice and the docket-logged  court is  desperately wading  through the rising  flood,  every  ’lawless’  cause  brought  recklessly before it  is a  dubious gamble which blocks the better ones from getting speedy remedy. Here is an instance.      If-this  is   a  big   ’if’-I  assume   some   of   the uncontradicted statements  in the counter-affidavit and writ petition to  be true,  read in the light of the High Court’s decision against  the Government  twice over that its action was mala  fide and  void, this  disturbing petition,  by the State of  Punjab for  leave to  appeal, which I now dismiss, lays  bare  the  basics  of  Power  pathology  and  judicial philosophy in  the  unhappy  setting  of  personal  vendetta fuelling the  politics of compulsory land acquisition. Prof. Miller’s assertion  that the  Supreme Court  "acting as  the ’national  conscience’   of  the..   people"  does   mandate standards towards  which public  and private  behaviour must

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gravitate’ is as true in our jurisdiction as in his country. 1074      The factual matrix, enough to unfold why the High Court twice condemned  the  State’s  action  in  a  case  of  land acquisition as  mala fide  and why  we endorse so that view, must be stated. The order under appeal is brief but there is more than meets the credulous eye beneath the verbal surface available in  the affidavits.  The vice  of misuse  of power centred round one Sri Satnam Singh Bajwa, 22nd Respondent, a former  minister,   a  quondom   M.L.A.,  and  a  continuous politician. The  ’writ-petitioners’  (respondents  1  to  21 before us)  seek to  crucify him  as  the  malefic  presence prodding the  impugned acquisition.  Since he  did not enter appearance, despite  service of notice, we felt that a fresh opportunity or  reminder should  be afforded to him to deny, if he so desired, the sinister imputations made against him. The benefit  of presumption  of good  faith belongs to every man, until  rebutted. Fresh notice was directed and effected to the  extent feasible  but he did not respond and we leave it at  that. We  proceeded to  hear the  case  after  a  few adjournments.      We must  highlight the  fact that  Sri  Har  Dev  Singh appearing  for  the  State,  struck  a  refreshing  note  of forensic propriety  in dissociating  himself from supporting State action if there be any, which, in the court’s view was seared with  bad faith  and argued  that, for  his part, the officers appear to have exercised power on the advice of the State’s legal  remembrance without  ill-will  or  affection. Counsel in  court are  ’robed’ representatives,  within  the parameters of  the adversary  system, geared  to the  higher cause of justice, not amoral attorneys paid to ventriloquize the case of the principal. We cannot dismiss truth in paper- logged impatience  but must try, with counsel’s services, to discover the  justice of  the cause.  So we  proceed to  the facts.      Punjab, the  pride of  the green revolution, is a great agricultural State  and,  naturally,  grain  markets  are  a developmental imperative.  The whole  litigation is  about a piece of land sought to be taken by the State to build a new mandi. Way  back in  1962, a site apparently best suited was selected in Qadian and the then Chief Minister, Partap Singh Kairon laid  the foundation  stone, and  a few poles erected there bear  witness to this old ceremony. Notification under Sec. 4  and declaration  under Sec. 6 were reportedly issued ten years ago (1969). But the very next year the proceedings were denotified  and in 1971 the land of respondents 1 to 21 were notified.  In Punjab,  a province of peasant prosperity and private  ownership, land  is held dear even to the point of murder,  and tragic  factions fester  round  agriculture. Naturally,  the   land  owners   resisted  and  successfully impeached the acquisition on the ground of mala fides before the High Court. This 1075 order of  the court,  surprisingly enough,  proceeded on the admitted mala  fides of  the State and should have liberated this innocent piece of land from litigative laceration. But, after a  long interval,  the State  chased the same land and rushed  through   acquisition  proceedings   a  second  time invoking  emergency   powers  under  Sec.  17  of  the  Land Acquisition Act. This too was assailed before the High Court on the  ground of  perversion of  State power to satisfy the malefic appetite  of a particular person, not the legitimate statutory purpose.  Struck down again by the High Court, the State was  chagrinned and,  perhaps, encouraged  by the fact that  the  High  Court  dropped  contempt  proceedings,  the

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jurisdiction  under   Art.  136  has  been  invoked  by  the Government of Punjab.      I have  had the benefit of reading my learned brother’s concise judgment.  The reasons  given there  have  my  broad agreement.      Four  issues   may  be  formulated  to  focus  specific attention.      1. What  is mala  fides in  the province of exercise of power ?      2. Is  the acquisition  proceeding in  the instant case bad for bad faith ?      3. Where,  in the  setting of Sec. 17 of the Act, do we draw the  legal line  between legitimate emergency power and illegitimate ’emergency excess’ ?      4. On  the facts,  here, do we bastardize or legitimize the State action under challenge ?      First, what  are the  facts ?  A grain  market was  the public purpose  for  which  Government  wanted  land  to  be acquired. Perfectly valid. Which land was to be taken ? This power to  select is  left to  the responsible  discretion of Government under the Act, subject to Articles 14, 19 and 31, (then). The  Court is  handcuffed in  this jurisdiction  and cannot raise  its hand  against what  it thinks is a foolish choice. Wisdom  in administrative  action is the property of the Executive  and judicial  circumspection keeps  the court lock-jawed save  where power  has been  polluted by  oblique ends or  is otherwise  void on well-established grounds. The constitutional balance cannot be upset.      The question,  then, is  what  is  mala  fides  in  the jurisprudence of  power? Legal  malice is  gibberish  unless juristic clarity  keeps it separate from the popular concept of personal  vice. Pithily  put, bad faith which invalidates the exercise  of power-sometimes  called colourable exercise or fraud on power and oftentimes overlaps 1076 motives, passions  and satisfactions-is  the  attainment  of ends beyond  the sanctioned  purposes of power by simulation or pretension  of gaining  a legitimate  goal. If the use of the power  is for the fulfillment of a legitimate object the actuation or  catalysation by  malice is  not legicidal. The action is  bad where  the true  object is  to reach  an  end different from  the one  for which  the power  is entrusted, goaded  by  extraneous  considerations,  good  or  bad,  but irrelevant to  the entrustment.  When the custodian of power is influenced  in its  exercise  by  considerations  outside those for  promotion of  which the power is vested the court calls  it   a  colourable  exercise  and  is  undeceived  by illusion. In  a broad,  blurred sense, Benjamin Disraeli was not  off   the  mark   even  in   Law  when  he  stated:  "I repeat...that all  power is  a trust-that we are accountable for its  exercise-that, from the people, and for the people, all springs, and all must exist".      Fraud on  power voids  the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and  intent of  the power,  whether this  be malice- laden  or  even  benign.  If  the  purpose  is  corrupt  the resultant act  is bad.  If considerations,  foreign  to  the scope of  the power  or extraneous to the statute, enter the verdict or  impel the  action, mala fides or fraud on power, vitiates the acquisition or other official act.      By these  canons it  is easy  to hold that where one of the requisites  of s.  4 or  s. 6, viz., that the particular land is  needed for  the public purpose in view, is shown to

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be not  the goal  pursued but  the private  satisfaction  of wreaking vengeance,  if  the  moving  consideration  in  the selection of  the land  is an  extraneous one,  the  law  is derailed and  the exercise  is bad.  No that  this  land  is needed for  the mandi,  in the  judgment of  Government, but that the  mandi  need  is  hijacked  to  reach  the  private destination of  depriving an enemy of his land through back- seat driving  of  the  statutory  engine  !  To  reach  this conclusion, there  is a  big ’if’  to be  proved-if the real object is  the illegitimate  one of taking away the lands of the respondents  1 to 21 to vent the hostility of Respondent 22, under the mark of acquistion for the mandi.      This is  a question  of fact  and the High Court, twice over, within  a period of seven years, held so, although the second time no specific finding of mala fides was made. I do not quite  see how  else the acquisition can fail and infer, not res  judicata nor  contempt of  court but  repetition of mala fide acquisition as the real ground behind the 1077 High Court’s  holding. This  court does  not upset a factual finding unless  it is  upset by perverse assessment, absence of evidence and the like. None such exists and I concur. But what have  respondents 1  to 21  made out  ? When power runs haywire under statutory cover, more needs to be said to make good the exposure. This takes me to a projection, in detail, on the screen of time, of the alleged politicking behind the taking of property challenged in this case.      We assume  the facts, stated in the counter-affidavits, to the  extent not  expressly denied, especially because the 22nd respondent, Shri Bajwa, has not cared to contradict the turpitude imputed  to him,  which is  unfortunate.  We  draw tentative conclusions  based on  the averments  without  the advantage of the affected party’s response.      Long ago  in 1962,  a site  was chosen  for a new grain market and  the then  Chief Minister,  Shri Kairon, laid the foundation stone, and some surviving poles bear testimony to this ancient  ritual. This spot belonged to a cousin of Shri Bajwa and was eventually abandoned in favour of the lands of respondents 1  to 21.  This venture of 1971 was shot down by judicial fire  triggered by  the  admitted  ground  of  mala fides. Years rolled by, but malice dies hard, if egged on by political scramble.  So much  so, the  same lands were again acquired in  1977, dispensing  with so  much as  a statutory enquiry, undeterred  by the  earlier decision  of  the  High Court. The  respondents again  assailed the  acquisition  as fuelled wholly  by vendetta.  The High Court struck down the ’declaration’  over   again,  and   here  we   are  with  an application for leave to appeal against the adverse order.      We cannot  appreciate the  unusual step of quashing the acquisition twice  over by  the High Court on the rare score of fraud  on power  unless we  are instructed  in the bitter longevity of  election hostility  and the gentle genuflexion of administrative  echelons when  political  bosses  express their wishes.      The version  of the  contesting respondents is that two political factions  go  into  action  in  all  elections  in Quadian, led by Respondent 22, Satnam Singh Bajwa on the one hand, and  his rival Gurbachan Singh Bajwa, supported by the other respondents,  on the  other. Party  labels, where poll politics are  personal,  are  less  than  borrowed  apparel. Satnam ran Congress and won a seat in the Punjab Assembly in 1962 in  the teeth  of hot  contest  by  Gurbachan  and  the respondents. This  election had  its  impact  on  the  mandi acquisition. The  site where  the foundation  stone had been laid belonged  to Satnam’s  cousin and  this was the best of

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the four  alternatives selected by the Site Selection Board, the  least   suitable,  in   their  opinion,  being  of  the respondents 1078 1 to  21. But  should an  M.L.A. oblige his cousin and crush his rival,  according to  poll dharma?  We cannot answer but here Satnam’s ’influence’ postponed acquisition proceedings, notwithstanding  the   ceremonial  stone.  In  1967,  again, elections came  and Satnam  won on  the Congress ticket. But when the Akali Party formed the Government Satnam decided to serve  the   people  as   Minister  and   for  that  purpose transferred  his  politics  from  Congress  to  Akali.  This ensured the  safety of  the cousin’s  land  from  the  mandi peril. The  Akali Government  fell in  1969 but he fought as Akali, won  the  seat  and  became  ’Forest  Minister’.  The respondents, all  the  time,  resisted  him  in  vain.  When ’President’s Rule’ came, statutory notifications were issued for  acquisition  of  the  first  site.  The  mandi  project remained frozen  till then  and showed  signs of life during the short-lived  President’s Rule,  only to  be given  up in 1970 when  Satnam became  State Minister  of  Panchayat  and Development. He struck when the iron was hot by constituting a Selection  Board and appointing himself President thereof. The choice  was made  of the  site which  was allegedly  the least suitable. Thus the axe fell on the respondents 1 to 21 and lest  the take-over  be delayed,  even the S. 5A enquiry was scuttled by invoking the emergency powers under Sec. 17. At times, natural justice is the natural enemy of intolerant authority. Therefore,  the judicial process, under Art. 226, invalidated the  acquisition on  the ground  of mala  fides. Back as  an M.L.A.  in  1972  Satnam  nurtured  the  faction politics, and  there is  reference in the writ petition to a murder and other official interference which do not directly concern the  case. He  was detained  and  paroled,  and  the contestants swear  that by  political influence  and use  of relationship he revived the same acquisition once quashed by the High  Court.  We  skip  many  allegations  of  vice,  of pressure, of  defection as  drawing red-herring  across  the trail. But  the crux  of the  matter is  that uncontradicted aspersions  on   Satnam  having   pressured  the   political Government to seize the contestants’ land goes a long way to affirm the  High Court’s view, in the background of the long chronicle we  have set  out. The indefensible resort to Sec. 17 is evidence of the length to which the executive would go to come  to terms  with men  wielding  political  power.  No reason exists  for us  to grant  leave  in  the  case  where factually the  High Court has found improper attempt to take a citizen’s  land. We  need not record any positive finding. It is  sufficient to state that no ground to grant leave has been made out.      The fourth  point about  the use  of emergency power is well taken.  Without referring  to supportive case-law it is fundamental that com- 1079 pulsory taking  of a  man’s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving  him is  both reasonable  and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema  except for  good reasons.  Save  in real urgency  where public  interest does not brook even the minimum time  needed to  give  a  hearing  land  acquisition authorities should  not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible  taking, makes  a travesty  of  emergency

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power.      No constituency in our poor country can afford Kilkenny cat politics and personality cult.      I dismiss the State’s petition.      PATHAK,  J.   I  agree  that  the  petition  should  be dismissed.      The original  acquisition proceeding  in respect of the land belonging  to Respondents  Nos. 1  to 21 was quashed by the High  Court under Article 226 of the Constitution on the finding that  the action was vitiated by mala fides. A fresh attempt at  acquiring the  land was  assailed  by  the  said respondents and  has been struck down by the High Court. The petitioners now pray for special leave to appeal.      On a  conspectus of  the material on the record it does seem that  the impugned  acquisition  proceeding  cannot  be sustained. There  is reason  to believe  that the  statutory power to  acquire land  has  been  misused  to  satisfy  the personal ends  of the  respondent No.  22, an individual who appears to  be not without considerable political influence. Despite  an   opportunity   afforded   to   controvert   the allegations made by the respondents Nos. 1 to 21, no attempt has been  made by  him  to  contradict  the  allegations.  A counter affidavit  has been filed in this Court on behalf of the petitioners, the State of Punjab and the Extra Assistant Colonization  Officer,  but  the  material  portion  of  the counter affidavit  has been verified by its deponent "to the best of  my knowledge  and belief  as derived  from official record". The  land belonging to the respondents Nos. 1 to 21 was selected  by a  body described  as  the  Site  Selection Board. There  was  also  a  New  Mandi  Control  Board.  The deponent of the counter affidavit was not a member of either Board. He  was not  a participant in the deliberations which are said  to have led to the selection of the land belonging to the  said respondents.  Whether or  not the deliberations were effected by the influence or pressure of the respondent No. 22  is a  matter  to  which  the  officials  or  members selecting the land could alone be 1080 privy. In  the absence of any denial of the allegations made by the  respondents Nos.  1 to  21 in the writ petition by a person having  personal and  direct knowledge in the matter, and having  regard to  the entire history of the case, it is difficult to resist the conclusion that the averments in the writ petition alleging mala fides must be accepted.      The petition is dismissed. N.V.K.                                   Petition dismissed. 1081