STATE OF PUNJAB v. GURDIAL SINGH & Ors.

If the use of the power is for the ful filment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to re~ch an end different from the one for which the power is entrusted, goaded by extraneons considerations, good or bad, but irrelevant entrustment. When the custodian of power is influenced in its exer cise by considerations outsfde those for promotion of which the power is vested the court calls it a colourable exercise and is imdeceh·ed 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 mus: exist". to -- the"- 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 turpitud<; and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the If the purpose power, whether this be malice-laden or even benign. is corrupt the resultant act is bad.

If considerations, foreign to the scope of the po\ver or extraneous to the statute, enter the verdict or impd tho a_ction, ma/a fides or fraud on power. vitiates the acquisi tion or oti)er official act. By these canons it is- easy to hold that where one of the requisites of s. 4 or s. 6, viz., that the parti~u/ar land is needed for the p1•blic purpose in view, is shown to be not the goal pursued .but the private._ satisfaction of wreaking vengeance, if the moving consideration in the selection of the land is an extraneous one, the law is derailed and the exercise is bad. No that this land is needed for the mandi, in the judgment of Government, but that the mandi need is hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of \he staiutory engine! To reach this conclusion, there is a big 'if. to be proved-if the real object is the iJle~itimate one of taldng away the lands of the respondents 1 to~ . .r-.a fv ~.,t the hosulity of Respondent 22, under the mark of ~" 'the mandi.

Jishon · · -- 1 -V--' · - · · ,,.. This JS a questron of fact and the High . Court twice, over within .fi . , the second tune no speci c a TV>r1od of seven years, held so, althoup h e ac- t quite see ow e se finding of ma/a fides was made. I don° quisition can fail and infer, not re.• /udicata nor cont~ptb ~f d co~~ but repetition of ma/a fide acqui•aon as the real grou-~ ' e n ' - 1 . PUNJAB v. GURDIAL SINGH (Krishna Iyer, J.) 1077 .J High Court's holding. This court does not upset a factual finding unless it is upset by perverse assessment, absence of evidence and the like. None such exists and I concur. But what have respondents 1 to 21 made out ? When power runs haywire under statutory cover, I)lore needs to be said to make good the exposure. This ~kes me to ~- ---a-proj~tion, in detail, on the screen of time, of the alleged politicking ' behind ~he taking of property challenged in this case. ' We assume the facts, stated in the counter-affidavits, to the extent not expressly denied, especially because the 22nd respondent, Shri Bajwa, has not cared to contradict the turpitude imputed to him, which is unfortunatt.

We draw tentative conclusions based on the aver- u1ents without the advantage of the affected party's response. ' B C Long ago in 1962, a -site was chosen for a new grain market and the then Chief Minister, Shri Kil.iron, laid the foundation stone, and s9I)le surviving poles bear testimony to this ancient ritual. This spot q~lpilged to a cousin of Shri Bajwa and was eventually abandoned i!l faVOur of the lands qf respondents 1 to 21. This ven!_ure of 1971 D w,as. shot d<Jwn by judicial fire triggered by the aduiitted. ground of maia fides. years rolled by, 'but malice dies hard, if . egged on by political scramble. So much so, the same lands were again acquired in 1977, dispensing with so much as a,.statutory enquiry, undeterred 1/Y the earlier decision of the High Court. The respondents again assiVJed the acquisition as fuelled wholly by vendetta. The High E ·Court struck down the 'declarati011' over again, and here we are with .an_ application for leave to appeal against the adverse order.

We cannot appreciate the unusual step of quashing the acquisition twice o~er by the High Court on the rare score of fraud on power un- 1ess we are instructed in the bitter longevity of election hostility and the gentle genuflexion of administrative echelons when political bosses express their wishes. 'The version of the contesting respondents is that two political factions go into action in ·all elections in Quadian, led by Respondent 22,fiatnam ~ingh Bajwa on the on~ hand, and his rival Gurbachan G .Singh Bajwa, supported by the other respondents, on the other. Party labels, where poll politics are personal, are less than borrowed apparel. ·satn~m ran-Congress and won a seat in the Punjab Assembly in 1962 in· the teeth of bot contest by Gurbachan and the respondents. This election had its impact on the mandi acquisition. ·The site where the ·foundation stone bad been laid belonged to Satnam's cousin and this B wa~ the best of the four alternatives selected by the Site Selection :B,p~d, 14e least ~ulta~le, in· t!)~lr opinion, being of the respondents 1·" 1078 SUPREME COURT REPORTS [1980] 1 s.c.R. ,A 0 I c formed 1 to 21.

But should an M.L.A. oblige his cousin and crush his rival, according to poll dharma? We cannot answer but here Satnam's 'influence' postponed acquisition proceedings, notwithstanding In 1967, again, elections came and Satnam woll ceremonial stone. on the Congress ticket. But when the Akali Party Government. Satnam decided to serve the people as Minister and ·f0r~ ' that purpose transferred his politics from Congress to Akali. This enc sured the safety of the cousin's land from ·the mandi peril. The Akali Government fell in 1969 but he fought as Akali, won the seat and became 'Forest Minister'. The respolldents, all the time, resisted him in vain. When 'President's Rule' came, statutory notifications were issued for acquisition of the first site. The mandi project remained frozen till then and showed signs of life during the short-Jived Presi dent's Rule, only to be given up in 1970 when Satnam ·became State Minister of Panchayat and Development: He strack when the iron was hot by constituting a Selection Board and appointing himself President thereof.

The choice was made of the site which was allegedly the least suitable. Thus the axe fell on the respondents 1 to 21 and lest the take-over be delayed, eyen the S. SA enquiry was scuttled by invoking the emergency powers wiper Sec. 17. At times, natural justice is the natural enemy of intolerant authority. There fore, the judicial process, under Art. 226, in Validated the acquisition on the ground of mala {ides. Back as an M.L.A. in 1972 Satnam E nurtured the faction politics, and there is reference in the writ petition to a murder and other official interference which do not directly con cern the case. He was detained and paroled, and the contestants swear that by political influence and use of relationship he revived the same acquisition once quashed by the High Court. We skip many allegations of vice, of pressure, of defection as drawing red-herring. across the trail. But the crux of the matter is that uncontradicted aspersions on Satnam having pressured the political Government to seize the conte11tants' land goes a Jong way to affirm the High Court's view, in the background of the long chronicle we have set out.

The inde- fensible resort to Sec. 1 7 is evidence of the length to which .the. exe- j cutive would go to come to terms with men wielding political power; No reason exists for us to grant leave in the case where factually the- High Court has found improper attempt to take a citizen's land. We . need not record any positive finding. ground to grant leave has been _made out. It is sufficient to state that n<> · · G The fourth point about the use of emergency power is well taken .. Without referring to supportive case-law it is fundamental that cbm"' j • I J PUNJAB V. GURDIAL SINGH (Pathak, !.) 1079 pulsory talcing 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 oonstitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to givi; a hearing land ac quisition authorities should not, having regard to Arts.

14 (and 19), slumbering burke an enquiry under Sec. 17 of process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. the Act. Here a I No.constituency in our poor country can afford Kilkenny cat politics and personality cnlt. I dismiss the State's petition. A B c PATHAK, J. I agree that the petition shonki be dismissed. The original acquisition proceeding in respect of the land belonging to Respondents Nos. 1 to 21 was quashed by the High Court under D Article 226 of the Constitution on the finding that the action was vitiated by mala (ides. A fresh attempt at acquiring the tand· was . assailed by the said respondents and has been struck down by the High Conrt. The petitioners now pray for special leave to appeal. to satisfy On a conspectus of the material on the record it does seem that the impugned acquisition proceeding cannot be sustained.

There reason to believe that the statutory power tO acquire land has been the personal ends of the respondent No. 22, an misused individual who appears to be not without considerable political in fluence. Despite an opportunity afforded to controvert the allegations made by the respondents Nos. 1 to 21, no attempt has been made by him to contradict the allegations. A counter affidavit has been filed in this Court on behalf of the petitioners, the State of Punjab and the Extra Assistant Colonization Officer, but the material portion of the counter affidavit has been verified by its deponent "to the best of my knowledge and belief as derived from official record". The land be longing_ to the respondents Nos. 1 to 21 was selected by a body des cribed as the Site Selection Board. There was also a New Mandi Control Board. The deponent of the counter affidavit was not a member of either Board. He was not a participant in the deliberations !Which are said lo have led to the selection of the land belonging to by the influence or pressure -of the respondent No.

22 is a matter to land could alone be which the officials or members selecting said respondents. Whether or not the deliberations were effected H 1 E F G 1080 SUPREME COURT REPORTS (1980] 1 S.C.R. A privy. In the absence of any denial of the allegations made by the respondents Nos. 1 to 21 in the writ petitfon by a person having per sonal and direct knowledge in the matter, and having regard to the entire history of the case, it is difficult to resist the conclusion that the· averments in the writ petition alleging ma/a {ides must be accepted. ' 8 The petition is. dismissed. - --~ N.V.K. Petition dismissed.