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acquisition of land it must form an opinion that the lands which are going to be acquired are not good agricultural lands. If %do i!e/!J;i ~roF .;;1df;)ro)~ "flotJif ni'&J6' ;f http://www.rishabhdara.comlsdview.php?case=21689 ;;;;f'e;J;eJ&J6' ;fe;2, ni'.Ji)etSZJatJt:Jdx5 d' coe» ~ n'.;;t;~ ;Itd;;It ~ ~i! eOB'm"ro)~ %tJ 7JJ.3 d' en!.

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;;toW6: RD 11 LGW 76 (;;ldo ;;:b;t~e~cilici:Jot 5MJE"W5 ;;tu<)E"dd 50r:;y.)ol:J '"':Iq.,wcili o/J'Ci' ~d~ ci~M eodd http://www.revdept.kar.nic.in/reV/Circular.nSflPagesiOpenframe d~c3f.ledZJ<5:Jr:;y.)nd:J3.d)ONcl0506_08_1976d~:S.1iil.lo.:JoSo;t "The Government of

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;;tdocrl:J.sorf ~ 350dctJ e::J~f"crl:Jc;:$;)ot ~;;:t6 Ncl6om~crl:J 5"ii~~.J'<J~ ~ 35OdOrf ero~do;:$c;:$;)ot ~.J'<J~;;t~ o;:$;)N'Q;)oM.lODrf. ~ ~1 ;;lUc)f"o ~;t~eclcrl:J e::Jo~c;:$;)ot ~e~N'~", 3d ~crl:J~~e<3.

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<3.J'<Jeri~<£:Jr;:wllctJ~d) &oerf ~e'ltUc)lld "The objection petitioner should known the remarks of the acquiring body and should have an opportunity to rebut the same if he so desire. In Writ Petition No 1247 of 1969, the High Court of Mysore, held that the Department, at whose instance the land is said to be acquired, has to file its answer to the objections on or before the date fixed for enquiry and the representatives of the Department can be heard only at the said enquiry and not after. The hearing contemplated is a public hearing in the presence of both the parties. The Land Acquisition Officer is not entitled to hear or receive any representation from the Department behind the back of the objector to his

prejudice It is therefore impressed on all the Land Acquisition Officers

that they should follow the above decision of the High Court of Mysore strictly in the disposal of the Land Acquisition cases. The final enquiry should be conducted only after getting all the information necessary from the Government Departments, which are the acquiring bodies, and the objector should be informed of the remarks of the acquiring body at the time of the final hearing. In the case of acquisition of the lands in favour of local bodies, other than Government Departments, the procedure laid down in Rule 5 of the Land Acquisition Rules, 1965, should be strictly followed and no correspondence should be entertained with the acquiring bodies subsequent to the hearing. "

PAGE40F9

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11.

&i wii ;;:j'Uc)f"O ~~J'Ol e(!)' ;;:j'O.w .. RDH 21 LQM 61 dated 20-02-1961

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~J'Olei:iww'::lr:;y.)fld:J~d) &i ;;;:mot::)@'o~ ~e~Uc)fld. "Initiating acquisition proceedings either (a) too pre-maturely without even obtaining sanction wherever necessary, to the proposal, of the competent authority or even before obtaining acquisition charges in advance from acquiring bodies, such as (Local Bodies, Companies, Corporations or other autonomous bodies) or",................................... "Failure to indicate the source to meet the cost of acquisition. The detailed head of account (Budget Head), Major, Minor and Sub-head etc., should invariably be indicated in

the body of the letter and in the Proforma" "In the case of

construction of buildings, Projects, Irrigation works etc., it should be clearly stated whether competent sanction has already been accorded." <':lo3'w' o;)mdd'~M Uc)N'J'Ol~

OlJcleJ~ ~i:i"Cf ?,iJ'Ol~t;Je@' 5c:b~ Uc)N'J'Ol;;:b QCl&o~ c:b;tJ_., d';)d:Jr{,e~t::)od' ffJ'Ol~"Cfo3'r:;y.) ro3' d wod';) ~>. ~@'~~ 3'd wcrll~~ e~.

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~J'Olei:iww'::lr:;y.)fld:J~d) &i ;;;:mot::)@'o~ ~e'l1Uc)fld. "it is absolutely necessary that the Government should have before it a complete list of reasons on the basis of which each of the objections are proposed to be over-ruled While the objections may be untenable, the recommendation for overruling each one of the objections has to be substantiated by reasons." <':lo3'w' o;)md"Cf~MN' Uc)@'J'Ol;;:b ~e, ~@'~tr 3'd wcrll~~e~.

13. ~e, 3'J~ffJ'Old:J N'11(T.)?;l~vq, ~t;JUc)d &i &ood ~J'Olee3dt.03'd dJ'OlI1'l1 ?"''l1'lffdo~

Uc)~fk)O @'d.'J.J eej'",-~ ~ ~d ;;;Jc)fI e~Ol:i'f"~fI Uc)crllf" ~;;;:ff"&o.'J.Jd wow elOlJcl"Cf~

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ernd e~I1'l1~~ r..l:J~)W) ~c:il3' dcrlJ;)d' oo"Cf, &i wii ;;:j'dUc)o ;;:b~J'Ol e(!)' ;;:j'o.w .. : RDH 10

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L VP 63 Dt 18-2-1963 d~M@' (;;:i'"CfO ~~~e(!)'crll~~ ffNc)f"~ff ;;:j'Uc)f"d"Cf dor:;y.)crll <':l~.wcrll

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d~M ~J'Olei:iww'::lr:;y.)fld:J~d) elde~"Cf ~11~;;:b~ ~~e, ~N'~tr 3'dwcrll~~e~. " •••••••••••••••• the Enquiry Officers should devote some attention to the point whether the local authority concerned, will be in a position to meet the demand for compensation that may be made on it and furnish a report. "

PAGE50F9

14. &i ~1 ;;:tdU<)o ;;:b;t~e~ ;;:tomt;: RDH 36 LVP 62 Dt 3-4-1962 d~M (;;:tdo

;;:b;t~e~cilici:J<t 5NclE"W5 ;;:tu<)E"dd 5or:;y.)cili '"':lq.,mcili o/J'Ci' ~d~ ci~M eodd http://www.revdept.kar.nic.in/rev/Circular.nsflPages/openframe o'~M tSJOle~ ~~r:;y.)fldl~d) &i aoJ50~o;t a:!eoJ~fld. "Instructions have been issued in Circular No. RDF 156 LOU 58 dated 13-1-1959 and RDH 35 LOM 61 dated 5-4-1961 laying down the procedure to be followed by the Corporations or Local Bodies etc., when lands are acquired on behalf of these bodies. It has been brought to the notice of Government that instructions issued in these circulars are not being followed strictly by the Municipalities and Local Bodies. This has resulted in sanctioning loans by Government to the Local Bodies to enable them to satisfy claims for compensation against them in land acquisition cases. To avoid such contingencies, it is hereby directed that all the Land Acquisition Officers and other officers concerned should not initiate acquisition proposals on behalf of the Municipalities and Local Bodies unless the cost of acquisition is deposited in advance in the Treasury." &i ~1 ~e ?,1JOl~ofu ;tJOlewd Z;S~eMlfl~ edd~Mci w';)~~cili ?S~cilici:J<t w';);t;)...., ~1O;)5 ~dl5~ ?S~cilic;i)<t ~t:J;;:td ;;:tdo o;)?.Jc)~ .s~t:Jdl;;j't:Jed;)dlr:;y.)ddl .w~ .wodl ci~t:JilJ ;tJOlewd ?,1JOl~cili ;;;S'5le)t; ~t:J;;:td ~~exJ a:!JOldWdl;;j' ?,1JOl~ojt;leci r3ScID U<)ciJOlc;i) Qcl&'~ w';);t;)_., d;)dlr{,e~t:Jod 5JOl12.do3d~ tl'ro~d .wodl ~e rI'w'::lciat 3d ~cili;;:b;t etS.

_.,

15.

'"':l.se21lci t:JcirtoJ~ ?,1JOl;;Jd_,t;lecid o;)~d~fI ;;;:tr.)ci", Qcld.secili ~eOi>\ Ncl",oJJ;)e)cili ;;;i;J;t;)

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~cit; ero~ Mlt;oJ;Jc)e)cili ~5~ tl'de~rtoJc;i)<t ~12.o/J n'JOle~d tS~ ;;:t~ e;l'NclE"o12.;;f o;)dlq,

.w;;f • .w~ . .w.L aeilJci~ ~;;:t.. Qcld3 ~eOi>\ Ml",oik)e)cili &,en' a:!e..n3 d " the state must

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take into consideration the purpose of acquisition of private land while fixing the quantum of compensation to be awarded to the land owner.... ... ... .... the other parameters for arriving at a just figure for compensation are the market value, location of the land and the loss of income suffered by the land

owner &,en' tl'de~;;:t~fldl;;j' ~5~ Nclt;oJ;Jc)e)cilid tl'de~M'\t:J Wclro .se~)f"rt..n,

;t;)w';)3.r.ldl cirta<>?;Jw'vt:JQ OlJ3t;lU<)dat 2tJ'o;;:t~dd <5rou.:>;;:b ,i)?JE"c;i)<t ~e®~d. tl'dU<)dro, ?,1JOl~t;leci r3ScID adz:J~?Seaodl aJOleoaJOl~~eo/J.

16. ;;:tdo ?,1JOl~ojt;leci 5;;;i;J~ 5NclE"W5 a<>Z;St; ;;:tu<)E"dd ;;:b;t~e~ ;;:tomt; RD 1324 LPW 66 dt.

1-2-68 [C] d~M (;;:tdo ;;:b;t~e~cilic;i)<t 5MlE"W5 ;;:tu<)E"dd 5or:;y.)cili '"':lq.,mcili o/!'Ci' ~d~ ci~M eodd http://www.revdept.kar.nic.in/rev/Circular.nsflPages/openframe d~M tSJOle~~~r:;y.)fldl~d) 2tJ'JOl~t;leciat o/JJOldexJ oJJ;);;j' o;)~drtoJc;i)<t ;;;:tortrotSn' ;tn'dl aJOlO® ;;;:i'JJor:;y.)rt?Seitl .wodl o;);;j'd~fI a:!eoJ~fld. ;;:tdo o;)~drtoJc;i)<t ;;;:tortrotSn' ;tn'dlaJOl"i,d ~12.dlw' ?,1JOl~t;leci r3ScID eilJodl~ ;;;i;J;t;)...., u.:>ciJOlc;i) Qcl&'d~ tl'fldl~d. ;;:tdo ;;:b;t~e~ &,en' a:!e'\t:J~d " Several instances have come to the notice of Government in which the omission to observe important rules of procedure relating to Land acquisition and appreciation of several factors to be taken into consideration in determining the suitability or otherwise of a particular land for acquisition, has often led to the necessity of either cancelling the preliminary notification or withdrawing the final notification. The tollowing are some of the reasons generally adduced for cancelling/withdrawing the Land acquisition notifications already published:-

1) Among the applicant who has requested for sites in the village, none is there who does not own a site or a house. Therefore the preliminary notification be cancelled.

2) There are plenty of vacant sites in the village which can be disposed of to the persons who are really in need of sites for the construction of houses. Hence the acquisition proceedings be dropped.

PAGE60F9

3) The land already notified for the purpose of manure pits is not suitable, as the dirty water would flow into the village close by and the sanitary condition would worsen.

4) The Acquisition of land for burial ground, already notified, is close to building sites and Industrial Training Centre and Estate, and therefore unsuitable.

5) The land notified is not fit for the extension of village site, since it is a garden land and the land is hypothecated to Government in connection with Taccavi loan.

6) That the present land bearing certain S. Nos. plus land available in a particular S.

No. is sufficient and therefore the present acquisition of notified land may be

cancelled or dropped.

7) The notified land is being cuhivated with ragi crops with mulberry and cocoanut trees standing on the lands.

8) The land notified is not liked by the party/village Panchayat for the purpose of village extension.

9) The occupants are not actually in possession or living on the lands notified for acquisition but are in possession of some other lands. Therefore the lands in actual possession will have to be notified.

10) That the lands selected is low lying and likely to become marshy during the rainy season, as the water rushes to the village which is just adjacent to the stream.

11) That the land is owned on behalf of a limited company and that conversion fine has already been paid and the acquisition would cause great hardship to the company if the lands are acquired.

12) That the portions to be acquired are found to vest already with the Municipality.

13) That the notification was not immediately followed by a public notice in the village.

14) That the persons to be provided with sites are few and they could be provided with

sites out of the land available with the Panchayat.

15) That the lands are very fertile.

16) That Government would have to pay heavy compensation ifacquired

17) That the concerned Village Panchayat has not credited or failed to credit the balance of cost despite sufficient opportunity given to the Village Panchayat.

18) That the proposed lands are at a distance of about a furlong from the existing colony and not continuous and therefore unsuitable for acquisition.

19) That there are khanas with valuable tamarind trees of over 2- to 25 years standing.

20) Only one person is in need of site and that such a person will be provided with a site out of the gramtana and therefore acquisition be dropped.

21) That the lands have already been acquired by private schools and buildings have also come up and in the circumstances the notification already published be withdrawn.

22) The Land Acquisition Officer has not published the substance of the notification immediately following its publication in the Gazette as required under the provisions of the Land Acquisition Act.

23) Owing to change in the alignment of the road, the acquisition may be dropped

24) That a transmission line of the Electricity Board runs in the land already notified for acquisition and therefore the acquisition proceedings may be dropped.

25) The Acquiring Body has not provided the funds. Therefore the acquisition proceedings may be dropped

It is needless to point out that if onlv the Acquisition Officers had examined and appreciated the state of affairs be(ore initiating the acquisition proposals properlv, the need (or cancellation/withdrawal of a notification alreadv published would not have arisen at all. In this context, it should be noted bv all concerned that re-issue of kind acquisition notification would entail the liabilitv ofthe State, while passing the award, as the value of property on the date ofpreliminarv notification is significant, apart from causing avoidable

PAGE 7 OF 9

waste of time and labour at all levels. Government would therefore desire that the Land Acquisition Offices should thoroughly examine the position obtaining at the time ofinitiating the acquisition proposals in the light of25 points cited above and scrupulously avoid such situations enumerated at para 1 above. If instances of lapse on the part ofthe Land Acquisition Officers to examine the acquisition cases as above are observed, or are brought to the notice of Government, Government will be constrained to take disciplinary action against such defaulting officers under rules in force.

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~J'Oleri~<5;)r:Yc)noJ;;J_.,d) loaf' aJ'('ro~d "It has been noticed that the proposals sent by the Revenue Officers in Land Acquisition cases are not accompanied by full information in respect of the proposed acquisition. Inmost of the cases there is no indication whether the estimated cost of acquisition has been

PAGE 80F 9

verified by a responsible officer with reference to the statistics of the sales and leases of lands in the locality. There have been instance where the amount of compensation as per final award had no relation at all to the estimate furnished while submitting proposals for the acquisition. This has resulted in acquisition being undertaken without a complete examination of all implications. Many cases where Government would have dropped the proceedings or selected some other lands if the estimated cost had been worked out correctly in the fist instance, have come to notice at a very late stage of the proceedings, when it was too late to withdrawn from acquisition. The initiating Departments and the Revenue Officers are therefore requested to furnish full information on the points detailed in the Appended Forms A,B and C while submitting their proposals for acquisition. "

19. r;;~ezj'Tf #eog ~Fo'~ Tfr2'&J6' "!Jwlf! a;"..Go'~..!tJ r;1..GXkJ:;t;Je;j 5o;:t;n'~Tf Qfk)tJx/ eJ'eikJd

..oru)o;:t;n'~ ZtQ{) ;;;;:/X)~d;~d' "Under the new policy, no project involving displacement of families beyond defined thresholds can be undertaken without a detailed 'Social Impact Assessment,' which among other things shall also take into account the impact that the project will have on public and community properties, assets and infrastructure. The new policy and the associated legislative measures aim at striking a balance between the needfor land for developmental activities and protecting the interests of the land owners, and others such as the tenants, the landless, agricultural and non-ag ricultural labourers, artisans and others whose livelihood depends on the land involved A special provision has been made for providing lifetime monthly pension to vulnerable persons, such as the disabled, destitute, orphans, widows, unmarried girls, abandoned women or persons above 50 years of age (who are not provided or cannot immediately be provided with alternative livelihood). When land acquired is transferred for a consideration, eighty per cent of any net unearned income so accruing to the transferor shall be shared with the persons from whom the lands were acquired, or their heirs, in proportion to the value of the lands acquired" <if ()e~oiJ<Jd ..ooiJ;;;;:/X)o;1~ Qfk)tJx/d' ;;;;:/x)mo;1 r;1..GXkJ:;{je;j ~oh ikJ;j..GnO iP<J&,o'o;:r.Jn.)~d

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OOJ'Ole2;:lNc) U<)~ eJUe)""ooplc3cfnod 5J'Ol~o';)~d:J c;)o~d:J t',:ji~}~3o' ~~fldl~d, U<)ciJ'Ol~ ~~ ~fI o;);)e~Odl;;j' il.l.~.~ ci~.pfJ eJUe)""o;;plc3cfnod zJed oplWZi1~o' &03 U<)oSJexJ ;;;rr.,cit, Nc)t,otr.:>e)oSJd et;lu<)o';;j'ci:J~ ti;)o';)o;ioir.lel1 o;i~il.lifJ'Ol~.s-"o';);;j' ife);;j'o' ~~-"

e;;j'1Tc)<Ec3rt ~O il.lo';)~ ec3. STATE OF PUNJAB Vs. GURDIAL SINGH &

M -"

ORS. AIR 1980 SC 319 "Allegation by land owner that statutory power misused to satisfy personal ends of an individual with political influence - No attempt to contradict allegation despite opportunity being afforded." ;5c;5)e, aeAl;5~MoJ)J'OJ ffJ'OJEZ £:)r;5)r)X::kJr)cr;)r;5c;5ch ;r:fDo~r\ ;5c;5)e, ~dJ'OJec;:Mu ero~r) ~q5c;5

4. ~~e~ aJ'OleWf'c! ~ aoJ'C1ori ae.'J.Jc!~M ero~e~.'J.Jo)c;5 ~de~r;J (rlHiic)c;5~-" ~rt.;S'ci:J<t

~e, eJc;57lClw'<3rt ~~-" iilJ.)e,)<37lClr\ ~~M;r:fUc)nd. STATE OF PUNJAB Vs. GURDIAL SINGH & ORS. AIR 1980 SC 319 "After a long interval, the State initiated acquisition proceedings in respect of the same land a second time. .. . . . ... ... . .. 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 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 The power to select land for acquisition

proceedings is left to the responsible discretion of Government under the Act, subj ect 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 Legal malice is gibberish

unless juristic clarity keeps it separate from the popular concept of personal vice. Bad faith which invalidates the exercise of powersometimes 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 fulfilment 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 .

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 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".

[1955] 1 S.C.R. 408, where it was held that the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts, and to Ram Prasad Narayan Sahi v. State of Bihar, [1953] S.C.R. 1129, where the Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others, and concluded: "We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult

to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only.

de Smith in his monumental work the Judicial Review of Administration

Action, 4th edition at pp.335-36 says in his own terse language: "The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it h may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the

power to have been conferred A power is exercised maliciously if its

repository is motivated by personal animosity towards those who are directly affected by its exercise. He then goes on to observe: "If the Court concludes that the discretionary power has been used for an unauthorized purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly remain areas of administration where the subject matter of the power and the evident width of the discretion reposed in the decision maker render its exercise almost wholly beyond the reach of judicial review. In these cases the courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purpose. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the courts will be prepared to set aside a judgment or order procured or made fraudulently despite the existence of a generally worded formula purporting to exclude judicial review. Bad faith is here understood by the learned author to mean intentional usurpation of, power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultra vires. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is

therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that, as usual throughout administrative law, we are concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence. In general, however, the Courts adhere firmly to the

wide meaning of 'jurisdiction' since this is the sheet- anchor of their power to correct abuses. They appear to be willing to stretch the doctrine of ultra vires to cover virtually all situations where statutory power is exercised contrary to some legal principles. There are many cases in which a public authority is held to have acted for improper motives or irrelevant considerations, or have failed to take account of relevant considerations, that its action is ultra vires and void.

the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, [1964] 4 S.C.R. 733. A power is exercised maliciously if its repository is motivated by personal Animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred in mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, L.R. [1904] A.C. 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred'. It was said that Warrington, C.l., in Short v. Poole Corporation, L.R. [1926] Ch. D.66, that: "No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative. In Lazarus Estates Ltd. v. Beasley, [1956] 1 Q.B. 702 at pp.712-13, Lord Denning, Ll. said: "No judgment ofa court, no order ofa Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. See also, in L Lazarus case at p.722 per Lord Parker, CJ : "'Fraud' vitiates all transactions known to the law of however high a degree of solemnity. All these three English decisions have been cited with approval by Supreme Court ofIndia in Partap Singh's case.

Bihar & Ors., [1966] 1 S.C.R. 708, it was laid down that the Courts had

always acted to restrain a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In State of Punjab v. Ramjilal & Ors., [1971] 2 S.C.R. 550, it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to dislodge the burden resting on the person who makes the same a though what is required in this connection is not a proof to the hilt as held in Barium Chemicals Ltd. & Am. v. Company Law Board, [1966] Supp. S.C.R. 311, the abuse of authority must appear to be reasonably probable.

3GUc)lld In the case of Munshi Singh and Ors. v. Union of India, in the

earlier notification it was mentioned that the Governor of Uttar Pradesh

was pleased to notify for general information that the land mentioned in the schedule is likely to be needed for a public purpose. Their Lordship held that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under Section 4(1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under Section sA of the Land Acquisition Act.

3GUc)lld In M.C. Mehta v. Union of India and Ors. , it is held as under:

"In the present case, the land cannot be permitted to be used contrary to the stipulated user except by amendment of the master plan after due

observance of the provisions of the Act and the Rules. Non-taking of action by the Government amounts to indirectly permitting the unauthorised use which amounts to the amendment of the master plan

without following due procedure " The growth of illegal

manufacturing activity in residential areas has been without any check and hindrance from the authorities. The manner in which such large scale violations have commenced and continue leaves no manner of doubt that it was not possible without the connivance of those who are required to ensure compliance with law and reasons are obvious. Such activities result in putting on extra load on the infrastructure. The entire planning has gone totally haywire. The law-abiders are sufferers. All this has happened at the cost of health and decent living of the residents of the city violating their constitutional rights enshrined under Article 21 of the Constitution of India. Further, it is necessary to bear in mind that the law-makers repose confidence in the authorities that they will ensure implementation of the laws made by them. If the authorities breach that confidence and act in dereliction of their duties, then the plea that the observance of law will now have an adverse effect on the industry or the workers cannot be allowed. Within the framework of law, keeping in view the norms of environment, health and safety, the Government and its agencies, if there was genuine will, could have helped the industry and workers by relocating industries by taking appropriate steps in the last about 15 years. On the other hand, it encouraged illegal activities. AND quoted following decisions:- In Virendra Gaur v. State of Haryana , referring to Principle 1 of the Stockholm Declaration of the United Nations on Human Environment, 1972, this Court observed that right to have living atmosphere congenial to human existence is a right to life. The State has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Where in the zonal plan, a land is marked out and reserved for park or recreational purpose, it cannot be allotted for building purpose though housing is a public purpose. Further, it was observed that though the Government has power to give directions, that power should be used only to effectuate and further goals of the approved scheme, zonal plans, etc., and the land vested under the scheme or reserved under the plan would not be directed to be used for any other public purposes within the

area envisaged there under In Administrator, Nagar Palika v.

Bharat ,Supreme Court observed that public interest has to be understood

and interpreted in the light of the entire scheme, purpose and object of the enactment. The hazard to health and environment of not only the persons residing in the illegal colonisation area but of the entire town as well as the provision and scheme of the Act had to be taken into consideration.

~;;;SiTc)<E<3rf ;;;:i'::J3'::l_., ;;Bcle)<3rf 3G<!Yc)l1d In view of the law laid down by the Apex

Court in the cases referred to supra, the notification under Section 3(1) of the Act by including the lands in question and declaring the same as "Road" and acquisition of the lands in question by the State Government in favour of the villagers, which are earmarked for industrial in the CDP for Road is contrary to the object and purpose for which the lands are earmarked. Therefore the CMC has no authority or power to declare the area as "Road" without change of land use in the CDP by following the mandatory procedure by the Planning Authority and State Government as provided under the provisions of the Karnataka Town and Country Planning Act. The change in the land use shall be done under Section 14- A of the Karnataka Town and Country Planning Act by the Planning Authority constituted under Section 4-C of the said Act. The CMC cannot usurp the said power to declare any area as "Road". In the decision of the Apex Court in Biharilal Jaiswal and Ors. v. Commissioner of Incometax and Ors. , at paragraph 19 upon it is held as under: "One arm of law cannot be utilised to defeat the other arm of law. Doing so would be opposed to public policy and bring the law into ridicule." CDP is prepared under Section 19 of the KT and CP Act keeping in view the objects of the said Act. The objects of the Act are. An Act to provide for the regulation of planned growth of land use and development and for the making and execution of town planning schemes in the State of Karnataka. Whereas, it is necessary and expedient. (i) to create conditions favourable for planning and replanning of urban and rural areas in the State of Karnataka, with a view to providing full civic and social amenities for the people in the State; (ii) to stop uncontrolled development of land due to land speculation and profiteering in land; (iii) to preserve and improve existing recreational facilities and other amenities contributing towards balanced use of land; and (iv) to direct the future growth of populated areas in the State, with a view to ensuring desirable standards of environmental health and hygiene, and creating facilities for the orderly growth of industry and commerce, thereby promoting general standards of

living in the State. And whereas, in order to ensure that town planning

schemes are made in a proper manner and their execution is made effective, it is necessary to provide that a local authority shall prepare a development plan for the entire area within its jurisdiction. And whereas, it is necessary and expedient to consolidate and amend the law relating to town planning for the aforesaid and other purposes hereinafter appearing. The CDP shall be preceded by Outline Development Plan. The procedure contemplated to prepare the CDP under the provisions of KT and CP Act is very elaborate. The CMC cannot dilute such CDP by declaring an area as "Road" without consulting the Planning Authority and seeking change of land use. Any change of land use without revising the CDP defeats the very object and purpose ofCDP. That is not permissible in law. Therefore, the declaration made under Section 3(1) of the Act as "Road" of the lands in question which are earmarked as Industrial Zone and acquisition of the same for Road purpose by the State Government is without authority of law, and the same is opposed to the provisions of KT and CP Act and therefore the same cannot be allowed to sustain. If the action of the CMC

and State Government declaring the lands earmarked for Industrial purpose etc., as Road area is accepted by this Court, those lands remain for Industrial Purpose etc., in the CDP but insofar as the CMC is concerned, the lands in question will be meant for Road. The lands in a particular area cannot be earmarked for two different purposes. Such thing will result in absurdity and the same is opposed to public policy as enumerated in the KT and CP Act.

~;;;SiTc)<E<3rf <>:i'J3'::l_., OBdI!)<3rf 3GUc)lld As per Clause (a) of Section 14- A(1) of

the KT and CP Act, the change of land use shall be in public interest. In the instant case, the declaration of the lands as "Road" is not for public purpose but for a private purpose. Even if it is construed that acquiring lands in favour of the villagers is public purpose, this important aspect is not evidenced from the original records of the State Government and TUDA & CMC. Clause (b) stipulates that the changes that would be proposed to the existing CDP shall not contravene the provisions of the KT and CP Act or any other law. The declaration of the lands in question as "Road" contravenes Section 14-A and Sub-section (2) of Section 14 of the said Act. In this regard the law laid down by the Apex Court in the

case cited below is aptly relied

which relevant paragraph is extracted

hereunder: In Municipal Corporation of Greater Bombay v. Industrial Development Investment Company Private Limited and Ors. , it is held as under: "It is, therefore, clear that for the purpose of acquisition of any land under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 Act, the land sought to be acquired must have a direct connetion with its specification, earmarking or reservation for a specified public purpose in the development plan itself. Such earmarking etc., is its charter. In other words, absence of public purpose would be a fetter on exercise of power of acquisition made under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 or a truncated public purpose. An exercise of eminent domain derives its efficacy from the reservation, specification or designation for public purpose of the concerned land as found in the development plan itself. In this nexus or linkage between the specification etc., of public purpose in the plan and the land concerned which is sought to be acquired under the MRTP Act is snapped off, prior to the completion of acquisition proceedings as per Section 126(2) of the MRTP Act, the entire edifice of acquisition proceedings under Section 126 would crumble down and the acquisition under that section would become incompetent" .

13. &i ~'4'Clori 'Cl2iC)f'w'Cl cSl1d ~~-" rl3~oa'd oir.le2;:l2iC) Ucl~ UclcS,r.,C'b eo...s~c;i)~ ~e e~7lc)a5'<3rt ~~-" iilJ.)e,)<3rt a'dUclnd If the State Government cannot change the land use other than the purpose for which it is already earmarked in the CDP in view of the decisions of the Apex Court which are referred to above and under the provisions of KT and CP Act then the purpose for which the lands acquired cannot be utilised and therefore it cannot be stated that lands in question are acquired by the State Government for public purpose. Apart from the factual and legal position the acquired lands cannot be utilised for Road unless the change of land use though the same statutorily vests with the State Government. Therefore the lands in question also can be either acquired by the other statutory authority or their owners for the purpose for which they are earmarked in the CDP, then it would leads to anomalous and incongruous position.

14. &i ~'4'Clori elri~a<)a'e'Cl UclcS,r.,c;i) eo~c;i)~ ~e e~ffi)a5'<3rt ~~-" iilJ.)e,)<3rt a'dUclnd It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision to

Taylor v. Taylor (1875)1 Ch D 426 : 45 LJ Ch 373, which was followed by Lord Roche in Nazir Ahmad v. Emperor AIR 1936 PC 253 : (1936)63 IA 372 who stated as under: Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindh-P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a Three Judges Bench of this Court in State of Uttar Pradesh v. Singhara Singh and the Rule laid down in N azir Ahmad's case, was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law.

Now, obviously where a Corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subj ect to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such Corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance. This rule also flows directly from the doctrine of equality embodied in Article 14. It is now well-settled as a result of the decisions of this Court in E.P. Royappa v. State of Tamil Nadu and Smt. Maneka Gandhi v. Union of India, that

Article 14 strikes at arbitrariness in State action and ensures fairness and

equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is nondiscriminatory; it must not be guided by any extraneous or irrelevant consideration, because that would be denial of equality-The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory. This

principle was recognised and applied by a Bench of this Court presided over by Ray, C.l., in Erusian Equipment and Chemicals Limited's case, where the learned Chief Justice pointed out that 'the State can carryon executive function by making a law or without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of black-listing has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of black-listing A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. It must, therefore follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with any one, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non- discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non- discriminatory ground.

H.G. Sheela vs State Of Karnataka And Ors. Decided on

24/1/2006 ORDERED by Justice V. Gopala Gowda, J. "Before parting with the judgment, it is felt that some observation has to be made so that the future action of the officers shall be in accordance with the provisions of statutory enactments with proper application of mind to the relevant aspects. It is to be noted that when some area is earmarked for residential or other purposes in the CDP, the Board or any other authority cannot

make use of such area to other purposes. If that is done, the very obj ect and purpose of preparing the CDP is defeated. In other words, the areas earmarked by the Planning Authority in the CDP remains as such but practically the said areas are permitted to be used for some other purpose by other authorities without revising the CDP. That is wholly

impermissible in law."

;tdu.:>fld Padma v. Hiralal Motilal Desarda and Others [(2002) 7 SCC

564], wherein it was stated: "The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs of large-scale urbanization and individual building. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in disfiguration of the beauty of an upcoming city and may pose a threat for the ecological balance and environmental

safeguards. "

;tdu.:>fld Friends Colony Development Committee v. State of Orissa and

Others [(2004) 8 SCC 733] stated the law in the following terms: "In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and expenence leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property ill the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the

State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified. "

;tdu.:>fld In Virender Gaur and Others v. State of Haryana and Others

[(1995) 2 SCC 577], it was stated: "It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme"

;tdu.:>fld In Sushanta Tagore and Others v. Union of India and Others

[(2005) 3 SCC 16], Supreme Court was concerned with interpretation of the provisions of Visva-Bharati Act, 1951 which was enacted to preserve and protect the uniqueness, tradition and special features of Visva-Bharati University. Therein, this Court opined: "It may be true that the development of a town is the job of the Town Planning Authority but the same should conform to the requirements of law. Development must be sustainable in nature. A land use plan should be prepared not only having regard to the provisions contained in the 1979 Act and the Rules and Regulations framed thereunder but also the provisions of other statutes enacted therefor and in particular those for protection and preservation of ecology and environment. As Visva-Bharati has the unique distinction of being not only a university of national importance but also a unitary one, SSDA should be well advised to keep in mind the provisions of the Act, the object and purpose for which it has been enacted as also the report of the West Bengal Pollution Control Board. It is sui generis."

3GUc)lld In M.C. Mehta v. Union of India and Others [(2005) 2 SCC

186], this Court issued further directions stating that the Government must have due regard in letter and spirit to aspects that have been mentioned in the earlier place including rights of individuals who are residents of the localities under consideration for in situ regularization by amendment of the Master Plan. In M.C. Mehta v. Kamal Nath and Others [(1997) 1 SCC 388], it was stated: "The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said

resources. "

3GUc)lld Bombay Dyeing & Mfg. Co. Ltd vs Bombay Environmental

Action Group & Ors DATE OF JUDGMENT: 07/03/2006 In case of an executive action, the court can look into and consider several factors, namely, (i) Whether the discretion conferred upon the statutory authority had been property exercised; (ii) Whether exercise of such discretion is in consonance with the provisions of the Act; (iii) Whether while taking such action, the executive government had taken into consideration the purport and object of the Act; (iv) Whether the same subserved other relevant factors which would affect the public in large; (v) Whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and (vi) Whether in arriving at such

a decision, both substantive due process and procedural due process had been complied with.

;fJ'Ol;;i~i~ e(;Jc)t;Ju.:>ort..t.J ~;;;Jc)c:if" ~®;;;Jc)~ ;;lr;io o;)ma' ;;;:tortro;;le)J ;;;i)Jor;iJ'Olc:id. OBS~f"O;);)ff <£03r;i~e ;;lr;io o;)mo';;;:wl1 o;)ma'~ ;;;:trc,c:i'deioctJ elde~o;)dJ~d. ~e,

idffilOirf o;);)e;;lu.:>l1d .wo~ o;)WClo'o;Sc;j'j~ ~e, ~@,io 30r;idr.J ffJ'Olc:i &i ~~ o;)ma'~ ~c:id ;;;i)JO(';Jc)l1dJ~r;:i';) u.:>@'J'Olc;j'j ?,1<>&;,o';;;:wl1dJ~d. <':Ida' ~~ ~ elte;;;:t~cili~M

~;;;Sffil<£<3rf ;;l~MiJ.JdJ~e<3. Bangalore Medical Trust vis B.S.Mudappa and

others Date of Judgement: 19-07-1991 reported in AIR 1991 SC 1902. It is observed that "When the law requires an authority to act or decide, if it appears to it necessary' or if he is 'of opinion that a particular act should be done', then it is implicit that it should be done objectively, fairly and reasonably. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for Which power is exercised. Public interest or general good or social betterment have no doubt priority over private

or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the Statute itself. The authority exercising discretion must not appear to be, impervious to

legislative directions. No doubt, in modern State activity, discretion

with executive

and administrative agency is

a must

for efficient and smooth functioning. But the extent of discretion or constraints on its exercise depends on the rules and regulations under which it is exercised." ~"- ~e~cSO &i ~rtn.J~f"cSd'o~ ~u.:> ri~~rtO 1 c3e

"" M M

e;;;S'7lc)a5'c3rt ;;:j'0M~o)~ec3. Devinder Singh & Others vs State of Punjab &

Others Appeal (civil) 4843 of 2007 DATE OF JUDGMENT: 12/10/2007 . Hon'ble Justices S.B. Sinha & Harjit Singh Bedi have observed that "When an order is passed without jurisdiction it amounts to colourable exercise of power. Formation of opinion must precede application of mind. Such application of mind must be on the materials brought on records. The materials should be such which are required to be collected by the authorities entitled therefor. The authorities must act within the four-corners ofthe statute. An opinion formed even on the basis of an advice by an authority which is not contemplated under the statute render the decision bad in law. A statutory authority is bound by the procedure laid down in the statute and must act within the four-corners thereof." cS;;;:i':)e, ~e~cS'2 Ucl~N'::l ;;;:k)§ol!J_.,

~eo ~e;;;S'eJ UclcS,r.,C'b ~drt.!_.,~,r.,~;;j';;j'd ?jd'o~rt ~di'@c)n. OC)2;:IUcldrort'l1 e?j,r.,eQ'c3rt ~oJ7lc)n ;;;:i':);)od';);;;S'ooJ::Ju.:>nd.

e;;;S'7lc)a5'c3rt ;;:j'0M~dJ~ec3. Devinder Singh & Others vs State of Punjab &

Others Appeal (civil) 4843 of 2007 DATE OF JUDGMENT: 12/10/2007 . Hon'ble Justices S.B. Sinha & Harjit Singh Bedi have observed that "A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperative

one." ~e aeil.lc!Q U<)c!f.lN';) ~tioilJ-" ~eo aeo;SeJ U<)N'f.lN';) adrf.!-"af.l~~d -ddoarf ~dffidl1. \Tc)2;:;U<)drori'oJ <3~f.leQ'<3rf 1..,oJiTc)11 ;;;:b;)odJo;SooJ::J<!:kll1d.

28. ~~e~ af.lWJe-N' &i aoJ6o"d aeil.lc!~M MrfodJ ~e'lt<!:kll1d ;;tdo .<::lW<)do;J~~ ~e eo;SiTc)a5'<3rf ;;t~Mil.ldl~e<3. Kesavananda Bharati Sripadagalaveru v. State of Kerala [1973] Supp. 1 S.C.R. 1 - popularly known as Fundamental Rights case - that any law providing for acquisition of property must be for a public purpose. Whether the law of acquisition is for public purpose or not is a justifiable issue. But the decision in that regard is not to be given by any detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble. The matter has to be examined with reference to the various provisions of the Act, its context and set up, the purpose of acquisition has to be culled out therefrom and then it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition." ~e aeil.lN'Q U<)c!f.lN';) ~tioilJ-" ~eo aeo;SeJ U<)c!f.lN';) adrf.!-"af.l~~d -ddoarf ~dffidl1. \Tc)2;:;U<)drori''lt <3~f.leQ'<3rf 1.., oJiTc) 11 ;;;:b;) 0 dJo;SOoJ::J<!:kl11 d.

29. ~~e~ af.lWJe-N' &i aoJ6o"d aeil.lc!~M MrfodJ ~e'lt<!:kll1d ;;tdo .<::lW<)do;J~~ ~e eo;SiTc)a5'<3rf ;;t~Mil.ldl~e<3. State of Bombay v. R.S. Nanji (1956) SCR 18, the Court observed that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established. Prima facie, the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose. In the said case, the Court observed that the phrase 'public purpose' includes a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned. It is impossible to define precisely the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined to determine

whether a public purpose has been established." N';;;:i':)e, ieiJ.JN'~ Uc:lN'J'OlN'J Wclt,.llJ_., o;);)eQ ieoS;u Uc:lN'J'OlN'J idn'~_.,iJ'Ol~w'w'o' 'ddoin' ~o'ffidl1. iYc)2;$Uc:lo'rorl'OJ' e zjJ'Ole Q'c3n' ?,." OJ'rIcll1 ~ 0 dl<>S'ocmu.:>11 d.

30. ;;b~e;;;:i';1' iJ'Olee3f"N' -9'l iOJ'do"Gt ieiJ.JN'O"" &.en'odl ~eOJ'u.:>l1d Ardo o::J~o';;j'N'J~ ~e, ~<>S'rIcl<Ee3n' ArO""iJ.JdJ~ec3. Bangalore Medical Trust vis B.S.Mudappa and others Date of Judgement: 19-07-1991 reported in AIR 1991 SC 1902. It is observed that "Discretion is an effective tool in administration. But wrong notions about it result in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a Statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly." N'w':le, ieiJ.JN'~ Uc:lN'J'Ol;;;b ;;;:Wt,.llJ_.,

o;);)eQ ie<>S';u Uc:lN'J'Ol;;;b idn'~-"iJ'Ol~w'w'o' 'ddoin' ~o'ffidl1. iYc)2;$Uc:lo'rorl'OJ' ezjJ'OleQ'e3n' ?,."OJ'rIcll1 ~odl<>S'Ocmu.:>l1d.

31. ;;b~e;;;:i';1' iJ'Olee3f"N' -9'l iOJ'do"Gt ieiJ.JN'O"" &.en'odl ~eOJ'u.:>l1d Ardo o::J~o';;j'N'J~ ~e, ~<>S'rIcl<Ee3n' ArO""iJ.JdJ~ec3. Devinder Singh & Others vis State of Punjab & Others DATE OF JUDGMENT: 12/10/2007 "\Vhen an order is passed without jurisdiction it amounts to colourable exercise of power. Formation of opinion must precede application of mind. Such application of mind must be on the materials brought on records. The materials should be such which are required to be collected by the authorities entitled therefor. The authorities must act within the fourcorners of the statute. An opinion formed even on the basis of an advice by an authority which is not contemplated under the statute render the decision bad in law. A statutory authority is bound by the procedure laid down in the statute and must act within the four-

corners thereof."

32. ff;;JcJn,3ff (;;SJd~dJ) ;;lUc)f"0' u'O(:k)oJJ '"-i~moJJ ;;b~J'~.,e(!)' ;;lomt,: Wei 37 6:)~~ 58 t:);;JcJOff 12-12-1958 0' '.<::lOlOi'oJJ:- c;$/io' .<::l~o'~rt ojt,oj~oJJ z.s.<::lJec;i) Zil'J'Ol~t;lec;$~oJJ ~1' ;;ldo ;;b~~e(!)' &;,ert a:!e<il~d- "Acquisition for good agricultural land for non-agricultural purpose affects the objective of increased food production. In some cases, near urban areas there may be no alternative land suitable for the specific purpose for which agricultural land is being acquired However, there may be other cases where the acquisition for fertile agricultural land for non-agricultural purpose could be avoided and alternative land which is not so valuable for agricultural purposes could be acquired Fertile agricultural lands should not normally be acquired for non-agricultural purposes unless there is no other alternative." ~e, Zil'J'Ol.<::lJoJJ ;;b~ ~e)~ ~J'OlN.3oje)...,d .lll'\. z.s.<::lJec;i) '"-iq, '"-i~/i'l1 ~rt .wdldJ(:k)o'dJ ffiS:Jc;$ <£o;;ld c;$;;;i)rt <3J'OleWe;;b ~erid ~;;S .... W<) ~~fI ;;;i)~

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oe.!oJJ ~~~oflojci:J<t ~c;$t, ;;b~e~ ~J'OleeJ6'f" DEVINDER SINGH & OTHERS versus STATE OF PUNJAB & OTHERS .:JoE.} u"e)'N'e;2, o;tr.;~ ~ru;)cJ.;JegO<:ld S.B. Sinha J o;x)~ Harju Singh Bedi J {u"e)'N' /lo~ S.L.P. (Civil) No. 9954 of 2006J WIT H CIVIL APPEAL NO. 4844 OF 2007 (Arising out of S.L. P. (Civil) No. 10182 of 2006J o'e;2, &d'n"~~ d' "When

the State intends to proceed with the acquisition of land it must form an opinion that the lands which are going to be acquired are not good

agricultural lands." /ldo u"e),N' o#Jro~ o;1o'.;Jcu)~ c-:;oeJif rj'if N'

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<3f.)ec:t~~r:;y.)fldl~d) ;ff.)~~eci~u o/$f.)deJJ om;;j' O;)?.Jcldl1oJ~~ iiliOl1ro<3rt ;trtdJ ~f.)O® ~or:;y.)l1?jeID wOr;SJ o;);;j'd<>Jclfl ~e'l1Uc)fld. ~do O;)?.Jcldl1oJc;i)~ iiliOl1ro<3rt ;trtdJ~f.)"{,d ;;;:i';k)~d:J;;j' Zi1f.)~~ee! e~em e::J~odJ~ ~3'::l_., U<)e!f.)c;i) QCl&o~ e::Jfldl~d. ~do ;;:b;t~e~ &oert ~eoJ:J~d " Several instances have come to the

notice of Government in which the omission to observe important rules of procedure relating to Land acquisition and appreciation of several factors to be taken into consideration in determining the suitability or otherwise of a particular land for acquisition, has often led to the necessity of either cancelling the preliminary notification or withdrawing the final notification. The following are some of the

reasons generally adduced [or cancelling/withdrawing the Land acquisition notifications already published:-

1) Among the applicant who has requested for sites in the village, none is there who does not own a site or a house. Therefore the preliminary notification be cancelled.

2) There are plenty of vacant sites in the village which can be disposed of to the persons who are really in need of sites for the construction of houses. Hence the acquisition proceedings be dropped.

3) The land already notified for the purpose of manure pits is not suitable, as the dirty water would flow into the village close by and the sanitary condition would worsen.

4) The Acquisition of land for burial ground, already notified, is close to building sites and Industrial Training Centre and Estate, and therefore unsuitable.

5) The land notified is not fit [or the extension of village site, since it is a garden land and the land is hypothecated to Government in connection with Taccavi loan.

6) That the present land bearing certain S. Nos. plus land available in a particular S. No. is sufficient and therefore the present acquisition of notified land may be cancelled or dropped.

7) The notified land is being cultivated with ragi crops with mulberry and cocoanut trees standing on the lands.

8) The land notified is not liked by the party/village Panchayat for the purpose of village extension.

9) The occupants are not actually in possession or living on the lands notified for acquisition but are in possession of some other lands. Therefore the lands in actual possession will have to be notified.

10) That the lands selected is low lying and likely to become marshy during the rainy season, as the water rushes to the village which is just adjacent to the stream.

11) That the land is owned on behalf of a limited company and that conversion fme has already been paid and the acquisition would cause great hardship to the company ifthe lands are acquired.

12) That the portions to be acquired are found to vest already with the Municipality.

13) That the notification was not immediately [ollowed by a public notice in the village.

14) That the persons to be provided with sites are few and they could be

provided with sites out of the land available with the Panchayat.

15) That the lands are very fertile.

16) That Government would have to pay heavy compensation ifacquired

17) That the concerned Village Panchayat has not credited or failed to credit the balance of cost despite sufficient opportunity given to the Village Panchayat.

18) That the proposed lands are at a distance of about a furlong from the existing colony and not continuous and therefore unsuitable for acquisition.

19) That there are khanas with valuable tamarind trees of over 2- to 25 years standing.

20) Only one person is in need of site and that such a person will be provided with a site out of the gramtana and therefore acquisition be dropped.

21) That the lands have already been acquired by private schools and buildings have also come up and in the circumstances the notification already published be withdrawn.

22) The Land Acquisition Officer has not published the substance of the notification immediately fOllowing its publication in the Gazette as required under the provisions of the Land Acquisition Act.

23) Owing to change in the alignment of the road, the acquisition may be dropped.

24) That a transmission line of the Electricity Board runs in the land already notified for acquisition and therefore the acquisition proceedings may be dropped.

25) The Acquiring Body has not provided the funds. TherefOre the acquisition proceedings may be dropped.

It is needless to point out that if only the Acquisition Officers had examined and appreciated the state of affairs befOre initiating the acquisition proposals properly, the need fOr cancellation/withdrawal of a notification already published would not have arisen at all In this context, it should be noted by all concerned that re-issue of land acquisition notification would entail the liability of the State, while passing the award, as the value of property on the date of preliminary notification is significant, apart from causing avoidable waste of time and labour at all levels. Government would therefOre desire that the Land Acquisition Offices should thoroughly examine the position obtaining at the time of initiating the acquisition proposals in the light of25 points cited above and scrupulously avoid such situations enumerated at para 1 above. Ifinstances of lapse on the part of the Land Acquisition Officers to examine the acquisition cases as above are observed, or are brought to the notice of Government, Government will be constrained to take disciplinary action against such defaulting officers under rules in fOrce. coe» ~e.- n'.w;)~ .3'.::iI~ ~ ~~eOB'm"ro)~ %e,2)().::iI.w;;)1atI..G d..GtS 'V~ ~~ -4. ~ajJd',o o;x)~ etV~ 0' ::JetSd ;;;;:i;.;oti;o;:/oti; x/ik)Fo'd ~d("l!/ etV~ OJp'%Vdlld

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Wherefore on the counts of factual aspects and legal aspects raised in objections and written arguments the acquisition proceedings may be dropped by riling suitable report to the government in this regard in the interest of Justice.

DATE:

PLACE: TUMKUR

ADVOCATE

FOR

OBJECTION

PETITIONERS