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
SK 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 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 MLA 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 jurisdiction under article 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
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 section 4 or section 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
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 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 MLA 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 section 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 article 226 invalidated the acquisition on the ground of mala fides
Back as an MLA 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 articles 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 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
NVK Petition dismissed


Summary:
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 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 section 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 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