ZAHIDA BI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Through this petition is questioned the acquisition proceedings relating to certain premises near Bharat Talkies in Bhopal, which is part of a building known as Naseer Building. It appears from the pleadings that Naseer Building was actually divided into two portions, one of which was sold to Madanlal and the remaining part continued to be owned by the petitioners. While implementing the widely declared encroachment removing drive', a threat was publicly made to demolish this Naseer Building. A portion of it had already been demolished. The right of the respondents to so demolish the building under the said drive has been questioned separately by the petitioners in Misc. Petition No. 2501 of 1990 (That petition is also being disposed of today by a separate order). According to the petitioners, when the respondents' attempt to demolish this part of the building was foiled by the petitioners, the respondents have thought of a device of compulsorily acquiring this part of the building in which a number of shops are located. A notification was issued on 31-1-91/1-2-91 under Sections 4 and 6 of the Land Acquisition Act. It was also notified that there was urgency to take over possession and, therefore, the enquiry under S. 5-A(2) of the Act was dispensed with, Realising that the joint notification under Sections 4 and 6 of the Act was not permissible, a fresh notification only under Section 6 of the Act was subsequently issued on 14-2-1991. The petitioners immediately rushed to this Court on issuance of the first notification and alleged that the proceedings for acquisition of the property are a colourable exercise of jurisdiction. The action is entirely mala fide. Specific allegations of mala fide have been made against Shri Babulal Gour, Minister, Local Self, the Commissioner and the Administrator, Municipal Corporation, Bhopal. It is further urged that the said acquisition is not to serve any public purpose and that by dispensing with the enquiry under S. 5-A(2) of the Act, the petitioners' valuable right to object to the proceedings has been wrongfully taken away as, according to them, there is hardly any emergency for immediate possession. It is also urged that the land is needed for the Municipal Corporation and the acquisition is also for the Corporation and therefore, the provisions of Chapter VII of the Act should have been made applicable. The notification was said to be bad as there was a combined notification under Sections 4 and 6 of the Act. The further attack is that S. 17-A (incorporating local amendment) has been violated. Since there has now been a separate notification under Section 6, the attack based upon issuance of a joint notification under Sections 4 and 6 of the Act, therefore, does not survive. Counsel for the petitioners also later realised that S. 17-A, introduced by the local amendment, has been held ultra vires and, therefore, gave up the attack based upon the terms of that section.

(2.) Elaborating the attack to the acquisition proceedings based upon mala fides and colourable exercise of jurisdiction, Shri Pakhruddin, learned counsel for the petitioners, submitted that even earlier to the notification in question, an attempt was made to acquire the land and the building in question. That notification was, however, withdrawn and the proceedings were dropped. There has been no change in the circumstances thereafter and until the date of the notification under Section 6 of the Act. Learned counsel, therefore, stressed that this device of acquisition has been adopted only after the respondents failed in their nefarious device of forcibly demolishing the building. It has been stated that the area falls in the assembly constituency from where Arif Muil, an independent candidate, was returned to the assembly after defeating a Bhartiya Janata Party candidate. Hence, the ruling party in the State, namely, Bhartiya Janta Party, has thought of teaching the petitioners a lesson through such a device, as the petitioners did not support the Bhartiya Janta Party candidate in that election. Shri Babulal Gour is said to have a personal grudge against the petitioner. The date, 25/01/1991, for this purpose had been deliberately chosen to cause humiliation to the petitioners on the eve of the Republic Day celebrations on the 26th January.

(3.) Bad faith, as expressed by the Supreme Court in State of Punjab v. Gurdial Singh AIR 1980 SC 319, the attainment of ends beyond the sanctioned purpose of power by simulation or pretention of gaining a legitimate goal. If the use of the power is for the fulfilment 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. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power in vested, the Court calls it a colourable exercise and is undeceived by illusion.