Case: Bajirao T.Kote (Dead ) By Lrs. &amp; Anr Vs. State Of Maharashtra &amp; Ors

This appeal by special leave arises from the order of the High Court bombay dated june 13, 1979 in writ petition no. 587 of 1979. The Govt. of Maharashtra published in the State gazette the notification issued under s.4(1) of the Land Acquisition Act 1 of 1894 (for short, the Act) on October 11, 1972, acquiring the lands including House No.594/B admeasuring about 25" x 25" for public trust "Saibaba Sansthan Shirdi", the validity of which was challenged by the appellants in the writ petition. The Division Bench rejected their writ petitions in limini. Thus this appeal.

Reasoning: 7. The contention that it is also a malafide exercise of power has no legs to stand. In Abdul Husein Tayabali & Ors. v. State of Gujarat & Ors., 1968(1) SCR 797, a bench of three Judges of this Court considered whether the State Govt. has exercised the power mala fide without applying its mind to the facts of the case. Considering the facts of that case and the allegations made in the petition and the counter affidavit filed by the State Govt. explaining the circumstances in which the notification under s.4(1) and the declaration under s.6(3) came to be published, i.t was held that it is not a mala fide exercise of the power. Enquiry under s.5A was conducted and a report submitted thereunder was considered and then the declaration under s.6(1) was published. It is seen that in this case even before the enquiry under s.5A was conducted and the report submitted and the declaration under s.6(1) could be made, the appellants had approached the High Court and sought to have the notification published under s.4(1) quashed.8. It is seen that the public trust Saibaba Sansthan - Shirdi, needs the land for the public purpose, namely, two temples are needed to be connected by a road though the land occupied by the house sought to be acquired. It is true that Saibaba Temple at Shirdi is run by a public trust maintaining Saibaba Temple at Shirdi and other temples and Dharamshala prayer Hall. Thousands of pilgrims daily visit Saibaba Temple at Shiridi to pay their homage and seek blessings of the mystic secular saint Sri Saibaba. Each religion claims that he belongs to their faith but the great saint never proclaimed himself to be of a particular faith. Therefore, all sections of the people in India have great unflinching faith, devotion and absolute belief in him and every day thousands of pilgrims throng Shirdi to pay their homage and seek his blessings. Though physically he was not present, the devotees believe that he is still surviving.9. The land of India is known for such great saints and yogies hailing from different faiths. One good example is of two brothers, by name, EIder and Younger, bala-yogies in Mummidivaram village in East Godavari of Dist. Andhra Pradesh, the EIder one started his penance at the age of 16 and the younger one at the age of 7 years respectively. They stopped taking any food and water and locked themselves in two separately built asharms from outside and the keys were kept in the custody of the District Magistrate. According to the wishes of the yogi, on Mahasivaratri day, in the midnight at the stroke of 12.00 without a watch, hissing sound would be heard and the doors were to be opened and the EIder yogi would give darshan to the devotees on a speciallyeracted platform at a distance of 500 sq. yards and after 10 minutes the door from outside would be closed and he would get himself seated on the platform after 10 minutes and thereafter the closed platform would be opened and throughout the day he would give darshan. The EIder yogi used to give darshan and retired back into Ashram on the next day midnight. Both brothers closed their eyes. There were neither windows to get air nor ventilators to exhaust air from inside. Keeping the ashram closed throughout the year without air, not only makes the life impossible to live but also bad Odour would emit contrarily when the doors were opened, perfume smell come out from the rooms. They did their ceaseless penance for well over 40 years. It is a miracle that they surpassed human physiology and they know the latest technological development. EIder yogi started his penance even when electricity was not known in the villages. He knows the mechanism of electrical operations and explained new developments in the country by his signals since he observed only silence. It is highly impossible to walk when they always keep themselves seated with crossed-legs. But within a short period of 5 to 10 minutes, he used to reach the platform. It is also impossible to know how they know the latest technological developments when they closed the eyes and lock themselves in the Ashram. These revelation are inexplicable and how they survive doing penance for more than 40 years without taking any food and water and without excretions and bath When the doors were opened, it would be seen that they appear as if they just had bath and had wet clothes but nothing could be found. The entire room gives perfume smell. It is difficult to explain these miracles where from such perfume smell comes and not a particle of dust was found in the rooms. India has produced several such great saints and yogies but these are only illustrative.10. Be that as it may, it cannot be gainsaid that providing access to the temples is not a public purpose. The exercise of the power under s.4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this court in Tata Cellular v. Union of India, 1994(3) Scale, 477, by a bench of three Judges, considering the scope of judicial review of the administrative action (grant of licence by tenders) held that the administrative actions of the State or its instrumentalities are amenable to judicial review. As mentioned earlier when the State Govt. have exercised the power under s.4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a malafide or colourable exercise of the power. In other words the exercise of the power serve no public purpose or it serves a private purpose.11. It is true that an attempt was made on an earlier occasion to purchase the property by negotiation but it was turned down by the Charity Commissioner and he refused to grant permission. Consequently, the trust was constrained to approach the government requesting to acquire the land. The government did consider the circumstances and exercised that power. The Act does give the power to negotiate by private sale or even during pending acquisition proceedings negotiations by private sale could be made in which event the need to determine the market value under the Act would be obviated and the compensation would be determined in terms of the agreement reached between the Land Acquisition Officer and the owner of the land or person having an interest in the land, subject to the prior approval of the Govt. Therefore, the failure to purchase the land by negotiation and the exercise of the power under s.4(1) thereafter, by no stretch of imagination, be considered to be a mala fide or colourable exercise of the power. Therefore, we do not find any infirmity or illegality in the notification published under s.4(1) warranting interference.