10 71 STATE OF PUNJAB v. GURDIAL SINGH & ORS. j · October 25, 1979 ~,,,! [V. R. KRISHNA !YER & R. S. PATHAK, .TJ.] . Land .Acquisition Act 1894 (1 of 1894), Ss 4, SA, 6 and 17-Land ac~uisi ~iOn-lligh Court held state action malafide-same land acquired later u11d~r emergency po'wer dispensing with statutory enquiry-Acquisition-Validity of. Land llcqufai:ion proceedings-Allegation by land
owner that statutory power rnisused to satisfy personal ends of an individual with political influence -N9 al1£1nzpt to contradict allegation despite opportunity being afiorded- ma/afides-If p1aved.
In 1962, a site was chosen for a grain market and the foundation stone foe it was laid. This spot belonged to a cousin of Respond'ent No. 22, an ex.- Minister and an influential politician. This spot was eventually abandoned in favour of the lands of Respo.ndents Nos. 1 to 21, which were notified l'n 197L The landowners resisted and successfully
impeached the acquisition on the ground ,of n1ala [ides before the High Court. After a. Jong interval, the State initiated acquisition proceedings ln respect of the sam'e land a second time, invoking the emergency powers under Section 17 of the Land Acquisition Act.
The Respondents Nos. 1 to 21 a95ailed 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 legitima.te statutory purpose.
The High Court stiuck down the 'declaration', and invalidated the acquisition. Dismissing the Special Leave Petition of the State, HELD: Krishna Iyer, 1.) It is fundamental that compulsory taking of a man's property is a serious r and the smaller the man the more serious the matter.
Hearing him e deprivjng him is both reasonable and preemptive of arbitrariness, an..1 denial of tJ1is administrative fairness is constitutional anathema except fnr gnod reasons.. Save in rea1 urgency where public interest does not brook even the minimum time needed to give a he&ring, land acquisition authorities ~hould 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. [ l079B]
c 2. The power to select land for acquisition proceedings is left to the res- ponsible discretion of Government under the Act, subject to Articfes 14, 19 ood 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand again.st what it thinks is a foolish choice. Wisdom in administrative action is the property of the Executive and judicial circumspection keeps 'ilie court lock-jawed save where power has been polluted by oblique ends!'• otherwise void on well-established grounds. [1075 F-G]
3. Legal n1alice is gibberish unless juristic clarity keeps it separate . t the popular concept of personal vice. Bad faith which invalidates the ex.er .t.Se of po\ver–son1etimes, called ~olourable exercise or fraud on power and of~ tim'es overlaps n1otives, passions, and satisfoctions-is the attainment of ends beyond the 5anctioned purposes of power by simulation or pretension of gaining a legitimate goal.
If the use of the powef is for the fulfilment of a legal . object the actuation or catalysation by mc:.lice is- not l'egicidal. Tue 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, bul irrelevant to the entrustment.
\Vhen the cus~odian of po\ver is inftuenceJ in its exercise by considerations outsid'e those for promotion of which the power is vested, the court ca11s 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 tor the end designed. Fraud in this context is not equal to moral turpitude and em- braces all cases in which the action impugned is to effect some obfect which is beyond the purpose and intent of the power, whether this be matll:e-laden or even benign. If the purpose i11 corrupt the resultant act is bad. If consi-
derations, 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 vit.iafes the acquisition or other~oflicial act.
[1076 D-E] In the. instant case the moving consideration was not that this !and was needed for the mandi, in the judgment of Government, but that th'e mandi need \Vas hijacked t<:o reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engin'e.
Respondent No. 22 when he became State Minister of Panchayat and Development constitutedr a Selection Board and appointed himself as President th'ereof. The choipe was made of the site belonging to Respondents 1 to 21 and Jest the take-,lver be kh'"'' "'= ~ '" '"""" ™ """"' "< •ro><•• ~ '°"""'' '
under S 17. At times, natural justice is the natural enemy of intolerant a – rity. The- judicial proc~ss under Article 2~6 therefore, rightly invalidated 1 – acquisition on the ground of mala fide.
[I076F, 1078 C-E] 'lt 5. Thi.5 court does not upset a factual finding unless it is upset by perverse. assessment, absence of evidence and the like. [1077A] 6. Counsel in court are
'rob~d' representatives, within the parameters of the adversary system, geared to the higher cause of justice, not amoral attor- neys 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] PUNJAB v. GURDIAL SINGH (Krishna Iyer, J.)
(Per Pathak J. concurring) 1. On a conspectus of the material on the record it does seem that. the im- pugned acquisition proceeding cannot be sustain'ed. 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 considerabl'e 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. \Vhether or not the delibera.tions which wer'e said to have led tci the selection of the land belonging to Respondent Nos. 1-21, were affected by the influence or pr'essure 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 mit petition by a person having personal and direct knowledge in the matter, and having regard to the entire history of th'e case, it is difficult to resist the conclusion that the averments in the mit petition alleging mala fides must be accepted. [1079H-1080BJ
QIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil) No. 1207 of 1978. From the Judgment and Order datcrl 28-7-1977 of the Punjab an<l 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 com- mits a double sin and here we are scandalized that the sinner is the State itself.
When thousands of humble litigants· are wait!ng in the queue hungry for justice and the dpcket-logged court is desperately wading throngh the rising flood, every 'lawless' cause brought reck- lessly 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 state- ments 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 ma/a fide and void, this disturbing petition, by the Stale ~ Punjab for leave to appeal, which I now dismiss, lays bare the basics of Power pathology and judicial philosophy in the nnhappy set- ting of personal vendetta fuelling the p61itics of compulsory land acquisition.
Prof. Miller's assertion that the Supreme Court "acting as tlle 'national conscience' of the. . people" does mandate standarcjs towards which public and private behaviour must gravitate' is as true in our jurisdiction as in his country.
(!) Miller-The Supreme Court-Myth e.nd Reality. 14-743SCT/79 c o· , B c [l980J 1 S.C.R. The factual matrix, enough to nnfold 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 quondam M.L.A., and a continuous politician. The 'writ-petitioners' (respondents l 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 re- butted. 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 9n the advice of the 'State's legal remembrancer without ill-wm or affection. Counsel in court are 'robed' representatives, within the parameters of the adversary ~ys
tem, 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· ad declaratio'n under Sec. 6 were reportedly issued ten years ago (1969): But the very next year the proc~edings 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 factio'ns
fester round agriculture. Natnrally, the land owners resisted and successfnl!y impeached the acquisition on the ground of mala fides before the High Court. This PUNJAB v. GURDIAL SINGH (Krishna Iyer, J.)
I 07 5 order of the court, surprisingly enough, proceeded on the . admitted ma/a fides of the State and should have liberated this innocent piece of laud 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 Coiirt on the . -£round cf 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 chagrined and, perhaps, encouraged by the fact that the High Court dropped contempt pro- ceedings, the jurisdiction under Art. 136 has been invoked by the .
Government of Punjab. I have had the benefit of reading my learned brother's concise judgment. The reasons given there have my broad agreement. Four issues may be formulated to focus specific attention. 1. What is .ma/a 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 'emer- c gency 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 . · F 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 h.and 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 wh 0 re- nower has been polluted by oblique ends or is otherwise · ,on weu-
bli h d d – Th I bal l-vmd' ·~ s e groun s. e constitutiona ance cannot o.., upse. ., -· Th~ q~ti-On, th~n, ·~ what is ma/a {ides in the jurisprudence of power!. fr gal malice "n;ibberish unless juristic clarity keeps it
separa e om the popular c…. f al . . .1 f "th hi h . alida ·•cept o person VIce. , P1tbi y put, bad a1 w c mv . tes the e..,.cise of power–sometimes called colourable exercise or fraud on ·
d ft 1• la nwer an – o en unes over ps c motives, p:issioD.s and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation OT pretension of gaining a legitimate goal.
If the use of the power is for the ful- filment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to re~ch
an end different from the one for which the power is entrusted, goaded by extraneons considerations, good or bad, but irrelevant to — the"– entrustment. When the custodian of power is influenced in its exer-
cise by considerations outsfde those for promotion of which the power is vested the court calls it a colourable exercise and is imdeceh·ed 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 mus: 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 turpitud<; 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 po\ver or extraneous to the statute, enter the verdict or impd tho a_ction, ma/a fides or fraud on power. vitiates the acquisi- tion or oti)er 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 parti~u/ar land is needed for the p1•blic purpose in view, is shown to be not the goal pursued .but the private._ satisfaction of wreaking vengeance, if the moving consideration in the selection of the land is an extraneous one, the law is derailed and the exercise is bad. No that this land is needed for the mandi, in the judgment of Government, but that the mandi need is hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of \he staiutory engine! To reach this conclusion, there is a big 'if. to be proved-if the real object is the iJle~itimate
one of taldng away the lands of the respondents 1 to~ . .r-.a fv ~.,t the Jishon or hosulity of Respondent 22, under the mark of 'the mandi. -V–' Court twice, over within This JS a questron of fact and the High
.fi , the second tune no speci c a TV>r1od of seven years, held so, althoup h 1 th ,,.. t quite see ow e se e ac- finding of ma/a fides was made. I don° quisition can fail and infer, not re.• /udicata nor cont~ptb ~f d co~~ but repetition of ma/a fide acqui•aon as the real grou-~
e n PUNJAB v. GURDIAL SINGH (Krishna Iyer, J.) .J 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, I)lore needs to be said to make good the exposure. This ~kes me to ~- —a-proj~tion, in detail, on the screen of time, of the alleged politicking behind ~he 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 unfortunatt. We draw tentative conclusions based on the aver- u1ents 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 Kil.iron, laid the foundation stone, and s9I)le surviving poles bear testimony to this ancient ritual. This spot q~lpilged to a cousin of Shri Bajwa and was eventually abandoned i!l faVOur of the lands qf respondents 1 to 21. This ven!_ure of 1971 w,as. shot d<Jwn by judicial fire triggered by the aduiitted. ground of maia 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 1/Y the earlier decision of the High Court.
The respondents again assiVJed the acquisition as fuelled wholly by vendetta. The High ·Court struck down the 'declarati011' 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 o~er by the High Court on the rare score of fraud on power un- 1ess we are instructed in the bitter longevity of election hostility and tr
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,fiatnam ~ingh Bajwa on the on~ 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. ·satn~m ran-Congress and won a seat in the Punjab Assembly in 1962 in· the teeth of bot contest by Gurbachan and the respondents. This election had its impact on the mandi acquisition. ·The site where the ·foundation stone bad been laid belonged to Satnam's cousin and this 1·"
wa~ the best of the four alternatives selected by the Site Selection :B,p~d, 14e least ~ulta~le, in· t!)~lr opinion, being of the respondents ,A c 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 woll on the Congress ticket.
But when the Akali Party formed the Government. Satnam decided to serve the people as Minister and ·f0r~ ' that purpose transferred his politics from Congress to Akali. This enc sured 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 respolldents, 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-Jived Presi- dent's Rule, only to be given up in 1970 when Satnam ·became State Minister of Panchayat and Development: He strack 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, eyen the S. SA enquiry was scuttled by invoking the emergency powers wiper Sec. 17. At times, natural justice is the natural enemy of intolerant authority. There-
fore, the judicial process, under Art. 226, inValidated the acquisition on the ground of mala {ides. 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 con- cern 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 conte11tants' land goes a Jong way to affirm the High Court's view, in the background of the long chronicle we have set out. The inde- fensible resort to Sec. 1 7 is evidence of the length to which .the. exe- j cutive 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 n<> 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 cbm"' j PUNJAB V. GURDIAL SINGH (Pathak, !.) pulsory talcing 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 oonstitutional anathema except for good reasons.
Save in real urgency where public interest does not brook even the minimum time needed to givi; a hearing land ac- quisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act.
Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. No.constituency in our poor country can afford Kilkenny cat politics and personality cnlt.
I dismiss the State's petition. PATHAK, J. I agree that the petition shonki be dismissed. The original acquisition proceeding in respect of the land belonging c 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 (ides. A fresh attempt at acquiring the tand· was . assailed by the said respondents and has been struck down by the High Conrt. 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 in- fluence.
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 be- longing_ to the respondents Nos. 1 to 21 was selected by a body des- cribed 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 lo have led to the selection of the land belonging to the1 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 (1980] 1 S.C.R.
privy. In the absence of any denial of the allegations made by the respondents Nos. 1 to 21 in the writ petitfon by a person having per- sonal 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 ma/a {ides must be accepted. The petition is. dismissed.
N.V.K. Petition dismissed.