State Of M.P vs Narmada Bachao Andolan & Anr

State of Madhya Pradesh ...Appellant

Versus

Narmada Bachao Andolan & Anr. ....Respondents

WITH

I.A. NOS. 31-45 & 46-60 OF 2011

IN

CIVIL APPEAL NOS. 2098-2112 of 2011

O R D E R

J.M. PANCHAL, J.

1. The respondent Narmada Bachao Andolan (hereinafter

called as NBA) has filed the aforesaid applications for

expunging certain adverse remarks made in paragraphs

2

129-132 and 145 of the judgment and order in the aforesaid

civil appeals dated 11.5.2011.

2. These applications have been filed on the grounds that

adverse remarks made against the applicants are

unwarranted and uncalled nor based on any

material/evidence on record. More so, they were not

necessary to adjudicate upon the controversy involved in

the appeals. Thus, the same may be expunged.

In the said appeals, a large number of factual and legal

issues had arisen. However, this court was concerned with

acquisition of land to the extent of 284.03 hectares falling in

5 villages named therein for the reason that the State

authorities had taken a decision to abandon the land

acquisition proceedings and not to conclude the same.

Before the High Court the applicants had pleaded that order

of the Authorities to abandon the proceedings was void ab-

initio as possession of the land in dispute had already been

taken. The High Court came to the conclusion that as the

possession of the land in dispute had already been taken it

was not permissible for the appellants herein to resort to the

3

provisions of Section 48 of the Land Acquisition Act, 1894

(hereinafter called 1894 Act).

3. When the matter came in appeal before this Court, the

factual controversy arose as to who was in actual physical

possession of the land. The NBA had taken a stand that as

the tenure holders of the said land had already been

dispossessed the question of abandoning the land

acquisition proceedings could not arise. The State

authorities submitted that actual physical possession is still

with the tenure holders and the stand taken by the NBA

was not factually correct. It was in view thereof that this

court on 24.2.2011 passed the following order:

"The learned counsel appearing for the parties

would be at liberty to submit their written

submissions within 10 days from today in SLP(C)

Nos. 31047-31061/2009 & SLP(C) Nos. 34195-

34209/2009. However, during the course of

hearing it has been seriously contended by the

State of M. P. that actual physical possession of

the land ad-measuring 284.03 hect. falling in five

villages viz. Dharadi, Kothmir, Narsinghpura,

Nayapura and Guwadi has not been taken by the

State, in spite of resorting to acquisition

proceedings to a certain extent. This fact has

been seriously refuted by respondent No.1 i.e.

Narmada Bachao Andolan and it has been

contented that actual physical possession

has been taken, which is projected in various

4

documents including the affidavits sworn by the

oustees/cultivators of the said land. They have

also placed reliance on the entries in the revenue

records which reflected the position that the

Executive Engineer of the Company was in

possession of the said land measuring 284.03

hect. also. In the light of serious contentions

raised by both the parties it is in fact not possible

for us to come to a definite conclusion as to who

is in actual possession of the land today.

In view of this, we deem it fit and

proper to request the learned

District Judge, Indore to make a

spot inspection and submit his report with regard

to the land ad-measuring 284.03 hect.

situated in the aforesaid five villages. Before

going to the spot, he will inform the parties

concerned so that they may, if so desire,

remain present at the time of

inspection and render proper

assistance in identifying the land in question.

We clarify that we are not concerned

with the total land of those villages,

rather the controversy is limited to 284.03

hect., which the State does not

want to acquire. It may also be mentioned in

the report as to whether there is any crop

standing on the said land or part of it and if it is

so, who had sown the crop. If the crop has

recently been removed or land has been tilled,

who has done so. Let the report be submitted

by the District Judge within a period of 15 days

from the date of communication of this order."

4. Such an order was necessary for the reason that the

affidavit filed on behalf of `NBA' dated 1.7.2010 clearly

provided that the order passed by the authorities dated

2.4.2009, not to acquire the land of the 5 villages was a

5

nullity and void ab-initio because the possession of the land

had already been taken in December 2007.

5. In pursuance of the said order, the District Judge,

Indore videographed the entire land in dispute and

recorded the statements of the tenure-holders in the

presence of the representative of `NBA' and came to the

conclusion that the tenure-holders were in actual physical

possession of the said land.

6. The copy of the report along with CDs were supplied to

the parties. They were given opportunity and they availed

the same by filing objections thereto and advanced their

arguments. It was after considering the same, the matter

was decided, wherein finding has been recorded that as the

report was prepared in presence of the representative of

`NBA', the same was worth acceptance and it was in view

thereof, further a finding was recorded that the claim made

by the `NBA' regarding the physical possession of the land

was not factually correct. The `NBA' had been afforded full

opportunity to make out the case. Their past conduct was

6

also pointed out and dealt with in paragraph 133 of the

judgment dated 11.5.2011.

7. In fact the application filed by the State under Section

340 of the Code of Criminal Procedure, 1973 (hereinafter

called Cr.P.C.) was at a later stage, i.e. on 31.3.2011 and

this court has not decided the same. Therefore, the

contents of that application or issuance of notice on the

same did not have any bearing so far as the main judgment

is concerned.

8. It is in this background the submissions have been

advanced by Shri Rajinder Sachar, Shri Rajiv Dhavan,

learned senior counsel and Shri Sanjay Parikh that there

was no occasion for the court to pass the adverse remarks

in the aforesaid paragraphs of the judgment as it amounts

to black listing the NBA. The NBA had taken a consistent

stand throughout the proceedings that the word `possession'

denotes different meanings so far as the 1894 Act and R & R

Policy are concerned. In law it may be permissible under the

1894 Act that a person may be dispossessed but he may

continue in possession because of the R & R Policy.

7 Therefore, adverse remarks have been made by this court

under total misconception and the same be expunged.

9. On the contrary, Shri P.S. Patwalia, learned senior

counsel has vehemently opposed the applications

contending that NBA cannot be permitted to make a totally

new case. The only issue involved had been as who was in

actual physical possession of the land and had it been the

case of NBA that the tenure holders were not in possession

of the land, question of appointing the Commissioner i.e.

District Judge, Indore would not have arisen. Accepting the

submissions made by the applicants would render the order

dated 24.2.2011 insignificant/meaningless as a futile

exercise. Thus, the applications are liable to be rejected.

10. In State of U.P. v. Mohammad Naim, AIR 1964 SC

703, this Court was asked by the State of U.P. - the

appellant, to quash the adverse remarks made by the High

Court of Allahabad against the police department as a whole

e.g.- "That there is not a single lawless group in the whole of

the country whose record of crime comes anywhere near the

8

record of that organised unit which is known as the Indian

Police Force."

This Court held that the court in its inherent

jurisdiction can expunge the adverse remarks suo moto or

even on application of a party. However, there must be a

ground for expunging as such remarks were not justified, or

were without foundation, or were wholly wrong or improper

and expunging thereof is necessary to prevent abuse of the

process of the court or otherwise to secure the ends of

justice. However, the court must bear in mind that such

jurisdiction being of exceptional nature must be exercised

only in exceptional cases. The cardinal principle of the

administration of justice requires for proper freedom and

independence of Judges and such independence must be

maintained and Judges must be allowed to perform their

functions freely and fairly and without undue interference

by anybody, even by this Court. However, it is also equally

important that in expressing their opinions the Judges must

be guided by consideration of justice, fair play and restraint.

It should not be frequent that sweeping generalisations

9

defeat the very purpose for which they are made. Thus, it is

relevant to consider:

(a) whether the party whose conduct is in

question is before the court or has an

opportunity of explaining or defending himself;

(b) whether there is evidence on record bearing

on that conduct justifying the remarks; and

(c) whether it is necessary for the decision of the

case, as an integral part thereof, to animadvert

on that conduct.

11. This view has been persistently approved and followed

by this Court as is evident from the judgments in Jage

Ram, Inspector of Police & Anr. v. Hans Raj Midha, AIR

1972 SC 1140; R.K. Lakshmanan v. A.K. Srinivasan &

Anr., AIR 1975 SC 1741; Niranjan Patnaik v. Sashibhusan

Kar & Anr., AIR 1986 SC 819; Major General I.P.S.

Dewan v. Union of India & Ors., (1995) 3 SCC 383; Dr.

Dilip Kumar Deka & Anr. v. State of Assam & Anr.,

(1996) 6 SCC 234; and State of Maharashtra v. Public

Concern for Governance Trust & Ors., AIR 2007 SC 777.

1 12. Thus, the law on the issue emerges to the effect that

the court may not be justified in making adverse

remarks/passing strictures against a person unless it is

necessary for the disposal of the case to animadvert to those

aspects in regard to the remarks that have been made. The

adverse remarks should not be made lightly as it may

seriously affect the character, competence and integrity of

an individual in purported desire to render justice to the

other party.

13. In the case, at hand, the Court had not to decide the

issue of justification of the tenure-holders for retaining the

possession of the land rather the question was, as who is in

actual physical possession of the land. Had it been the case

of justification of retaining the possession of the land by the

tenure-holders without being rehabilitated, the question of

appointing the Commissioner i.e. District Judge, Indore,

would not have arisen.

14. Observations/remarks made in the judgment dated

11.5.2011 are based on the pleadings taken into

1

consideration as has been taken note of in paras 114 and

115 which mainly read as under:

"114. The High Court while dealing with the said

applications did not deal with the issue

specifically as to whether the possession of the

land has actually been taken or even symbolic

possession has been taken by the State; as to

whether the persons interested have been evicted

from the said land; or they have voluntarily

abandoned their possession; or they are still in

physical possession of the land; or as to whether

after being evicted they had illegally encroached

upon the land in dispute. A direction has been

issued observing as under:

"The lands in these 5 villages of the

oustees were acquired by notifications

issued under the Land Acquisition Act, and

the NVDA has now passed an order on

2.4.2009 saying that the land/property of

these 5 villages shall not be acquired and

the action taken till now be dropped as per

the provisions of law.......The respondents,

therefore, will have to provide all the

rehabilitation benefits to the villagers of the

5 villages and for the purpose of

rehabilitation, the order dated 2.4.2009 of

the NVDA is of no consequence. The two IAs

stand disposed of."

115. The appellants herein have raised an

objection that the tenure holders of the said land

are still in actual physical possession and they

had never been evicted. However, on behalf of

the respondent i.e. Narmada Bachao Andolan,

Shri Alok Agrawal, Chief Activist of the

organisation, has filed the counter affidavit dated

1.2.2010 before this Court, wherein it has

specifically been mentioned as under:

1 (a) ........

(b) The order dated 2.4.2009 as not to

acquire the land of the five villages is a

nullity and void ab initio because the

possession of the lands has already been

taken. The land has already vested in the

State. This may be seen from the judicial

orders of Reference Courts Devas; the land

record of the revenue authorities of the State

Government, the order of the Land

Acquisition Officer and the affidavits of the

concerned oustees which were placed on

record before the said authorities.

(c) .....

(d) .....

(e) ......

(f) ......

(g) ......

(h) The oustees of the five villages had filed

a large number of affidavits before the

authorities/courts concerned stating that

possession of their lands/properties

acquired had been taken in December

2007.

(Emphasis added)

15. Thus, in view of the above, the arguments advanced on

behalf of the applicants are not justified. The applicants

cannot be permitted to make out a new case to justify

expunging of adverse remarks. More so, while making

certain observation against the `NBA' the guidelines laid

1

down by this Court in Mohd. Naim (Supra) had strictly been

observed. Remarks have been made as it was necessary to

do so while deciding the controversy involved therein. The

submissions so made are not worth acceptance.

However, learned counsel appearing for the applicants

have submitted that the NBA has rendered great service for

a long number of years to the down trodden and poor

farmers and thus NBA should not be deprived of the

opportunity to represent poor peasants. Mr. Sanjay Parikh

learned counsel has expressed remorse on behalf of the

applicants that the applicants ought to have acted with

more responsibility.

16. In view of the above, para 145 of the judgment stands

modified to the extent as under:

"In view of the above, we reach the inescapable

conclusion that the NBA has not acted with a

sense of responsibility and not taken appropriate

pleadings as required in law. However, in a PIL,

the court has to strike a balance between the

interests of the parties. The court has to take into

consideration the pitiable condition of oustees,

their poverty, inarticulateness, illiteracy, extent of

backwardness, unawareness also. It is desirable

that in future the court must view presentation of

any matter by the NBA with caution and care,

insisting on proper pleadings, disclosure of full

1

facts truly and fairly and should insist for an

affidavit of some responsible person in support of

facts contained therein."

17. With these observations, the applications stand

disposed of.

...........................J.

(J.M. PANCHAL)

...........................J.

(DEEPAK VERMA)

...........................J.

(Dr. B.S. CHAUHAN)

New Delhi

September 29, 2011