Madhya Pradesh High Court
Dr. Rambihari Mishra Since Dead Thr. ... vs The State Of Madhya Pradesh on 31 August, 2017
Author: Sanjay Yadav
Bench: Sanjay Yadav
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W.A.No.292/2017 & W.A.No.288/2017
HIGH COURT OF MADHYA PRADESH :
BENCH AT GWALIOR
Writ Appeal No.292/2017
Dr. Rambihari Mishra since dead through
legal heirs: Neeta D/o Dr. Rambihari Mishra
and others ...Appellants
versus
State of Madhya Pradesh and others ...Respondents
and
Writ Appeal No.288/2017
Dr. Rambihari Mishra since dead through
legal heirs: Neeta D/o Dr. Rambihari Mishra
and others ...Appellants
versus
State of Madhya Pradesh and others ...Respondents
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CORAM :
Hon'ble Shri Justice Sanjay Yadav
Hon'ble Shri Justice S.K. Awasthi
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Shri K.S. Tomar, learned Senior counsel with Shri Sanjay Singh
Tomar, learned counsel for the appellants.
Shri N.S. Kirar, learned Govt. Advocate for the respondent/State.
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Whether approved for reporting : Yes/No.
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Reserved on : 17.8.2017 28.10.2015
Date of decision : __.08.2017
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W.A.No.292/2017 & W.A.No.288/2017
ORDER
Per Sanjay Yadav, J.
In Writ Appeal No.292/2017:
This intra Court appeal under section 2 (1) of the Madhya Pradesh Uchcha Nayalayay (Khand Peeth ko Appeal) Adhiniyam, 2005 is directed against the order dated 11.5.2017 passed in W.P.No.1554/2010.
2. The writ petition by the petitioner was directed against the notification issued by the State of Madhya Pradesh under section 4 read with section 17 (1) and 17 (4) of the Land Acquisition Act, 1894 (for brevity "1894 Act") for acquisition of the land bearing Survey No.456 ad-measuring 2 bigha and 4 biswa (0.460 hectare) situated at Patwari Halka No.42 Mahalgaon, Tahsil and District Gwalior. The challenge was on the ground that the same is issued malafidely to deprive the petitioner of the benefit of a decree and is in flagrant violation of the provisions contained under section 4 (1) and 17 (1) and 17 (4) of 1894 Act; and that, no public interest is involved. Learned Single Judge vide impugned order negatived all the contentions and dismissed the petition.
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W.A.No.292/2017 & W.A.No.288/2017
3. Relevant facts leading to the controversy are that land in question was declared surplus by the competent authority and the provisions of the Urban Land (Ceiling and Regulations) Act of 1976 (for brevity "1976 Act") by order dated 22.4.1983. This order came to be challenged in Appeal on the ground that the Authority concern was not competent. The appeal was dismissed. Whereagainst Writ Petition M.P. No.135/1990 was allowed on 30.11.1994. The entire proceedings were quashed. However, during the interregnum period is from 22.4.1983 vesting of land with the State and the order passed in writ petition. The State Government treating the land being vested in it had constructed the hostel over the land in question for SC/ST students. That the petitioner filed a Civil Suit No.20A/1995 for declaration, possession and mesne profit. The suit was decreed on 4.1.2003. Whereagainst First Appeal No.176/2003 was dismissed on 17.10.2006. That the order dated 30.11.1994 passed in M.P. No.135/1990 was challenged by the State of M.P. before Supreme Court. The SLP was dismissed in 6.2.2009 and the Review Petition was dismissed on 18.2.2010. That in the meantime the decree in the civil suit was put to execution wherein the respondent State :: 4 ::
W.A.No.292/2017 & W.A.No.288/2017 deposited Rs.5 Crores towards the cost of land and Rs.12 Lakhs towards the mesne profit. It appears from the record that the matter was sought to be resolved as the State Government having constructed the hostel made effort to retain the same. As the matter could not settle the State Government taking into consideration the public interest involved invoked the urgency clause and issued notification under section 4 (1) read with section 17 (1) and 17 (4) of 1894 Act. It was this notification which was challenged in the writ petition which has been dismissed by the impugned order.
4. Reiterating the contention raised before the Writ Court it is urged that the Writ Court has grossly erred in negativing the challenge. The respondents in their turn have supported the order passed by the Writ Court.
5. Considered the rival submissions.
6. First contention is that the State and its functionaries have acted malafidely by issuing notification to deprive the petitioner to hold the property in question being its lawful owner as declared by the Court of law. Trite it is that where malice is attributed to the State its not a case of personnel ill will on the part of State, if at all it is described as an act :: 5 ::
W.A.No.292/2017 & W.A.No.288/2017 taken with an oblique motive as observed in State of A.P. and others Vs. Goverdhanlal Pitti, (2003) 4 SCC 739, wherein it is held:
12. The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact".
"Legal malice" or "malice in law" means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others'. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989].
13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in its authoritative work on Administrative Law [Eighth Edition at pg. 414] based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seek to 'acquire land' 'for a purpose not authorised by the Act'. The State, if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other'.
7. In Chairman & MD, BPL Ltd. Vs. S.P. Gururaja and others, (2003) 8 SCC 567, it is held:
"21. Malice in common law or acceptance means ill will against a person, but in the legal sense it :: 6 ::
W.A.No.292/2017 & W.A.No.288/2017 means a wrongful act done intentionally without just cause or excuse."
8. In West Bengal State Electricity Board Vs. Dilip Kumar Ray, (2007) 14 SCC 568, it is observed:
"15 ............................Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by malus animus, that is to say, by spite or ill will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable and probable cause.' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.
16.'Malice' means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala- fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630).
17. "12.The legal meaning of 'malice' is "ill will or spite towards a party and any indirect or improper motive in taking an action'. This is sometimes described as "malice in fact".
"Legal malice" or "malice in law" means "something done without lawful excuse". In :: 7 ::
W.A.No.292/2017 & W.A.No.288/2017 other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti(2003) 4 SCC 739).
9. In Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others, (2010) 9 SCC 437, it is held:
"25. The State is under obligation to act fairly without ill will or malice- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC 1941; Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC 567; and West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976)."
10. In the case at hand as the facts adverted to reveals that :: 8 ::
W.A.No.292/2017 & W.A.No.288/2017 the girls hostel for SC/ST students was constructed at the time when the land in question stood vested with the State because of its being declared surplus. It is a different matter that later-on the order declaring the land surplus was found to be erroneous for want of competency, but by that time the entire building was constructed.
11. In view whereof we are not inclined to hold that the notification under section 4 read with section 17 (1) of 1894 Act was infested with malice. Even otherwise, petitioner has no fundamental right to hold a property. Article 300A of the Constitution mandates that no person shall be deprived of his property "save by authority of law". And it is within the competence of the State to acquire the land of the petitioner by taking recourse to law.
12. The second contention is that sub-section (1) of Section 4 has not been complied with.
13. That sub-section (1) of section 4 stipulates.
"4. Publication of preliminary notification and power of officers thereupon. - (1) Whenever it appears to the [appropriate Government] the land in any locality [is needed or] is likely to be needed for any public purpose [or for a company], a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional :: 9 ::
W.A.No.292/2017 & W.A.No.288/2017 language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice , being hereinafter referred to as the date of the publication of the notification)].
14. In the present case the notification under section 4(1) read with section 17 (1) and section 17 (4) of 1894 Act was issued vide No.10- v -82-2009-10-Hkw vtZu dated 23.2.2010 published in Madhya Pradesh Gazette on 26.2.2010. The notification was simultaneously published in two regional local newspaper Nav Bharat on 26.2.2010 and again on 15.4.2010 and in another regional local newspaper Swadesh on 15.4.2010. Thus, there has been a compliance of stipulations in sub-section (1) of section 4 of 1894 Act. The decision in Special Deputy Collector, Land Acquisition C.M.D.A. Vs. J. Sivaprakasam and others, (2011) 1 SCC 330 relied by the petitioner wherein it is held that failure to publish in two daily newspaper vitiate the proceedings (paragraph 20.1 of the report) is of no assistance to the petitioner in these fact situation.
15. Further contention that the notification issued under section 4 (1) is vague as it does not give the proper description of the land in question when tested on the anvil :: 10 ::
W.A.No.292/2017 & W.A.No.288/2017 of the description and detail of the land given in the notification must fail. The notification gives the description of land to be acquired as under:
vuqlwph Hkwfe dk fooj.k ftyk Rkglhy xkze yxHkx {ks=Qy /kkjk 4 dh lkoZtfud ¼1½ ¼2½ ¼3½ ¼gsDVj esa½ mi/kkjk ¼2½ ds iz;kstu dk Xokfy;j Xokfy;j egyxkao i-g- ¼4½ vuqlkj }kjk o.kZu ¼6½ ua-42 izkf/kd`r vuq-tkfr-
2 ch?kk 4 vf/kdkjh tutkfr
fclok ;kuh 0- ¼5½ dU;kvksa
460 ftyk dks
la;kstd]vkfne f'k{kk ,oa
tkfr dY;k.k fuokl dh
foHkkx ]Xokfy;j lgk;rk
miyC/k
djkuk
Hkwfe dk uD'kk ¼Iyku½ U;k;ky;] Hkw& vtZu vf/kdkjh Xokfy;j ds dk;kZy; esa ns[kk tk ldrk gS-
16. Thus, besides District, Tahsil and Village even Patwari Halka and the area was duly notified with a further stipulation that the parties are at liberty to examine the plan in the office of Land Acquisition Officer. In Narendrajit Singh Vs. State of U.P. And others, AIR 1971 SC 306 reliance whereof has been placed by the learned counsel for the petitioner the notification was interfered with because there was no particulars given in the notification, there was no mention of any locality at all, whereas in the case at hand, it is :: 11 ::
W.A.No.292/2017 & W.A.No.288/2017 not that for the first time the State Government was acquiring the land in question. In fact the land earlier being declared surplus vested with the State Government and was also a subject matter of civil suit and therefore, it is not that the parties were not aware of the land in question notified for acquisition as would led any support to the contentions that the notification under section 4 (1) was vague. The contention that the proceedings vitiates because of the notification being vague therefore fails.
17. It is next contended that the acquisition proceedings vitiates because of non-compliance of the stipulation contained under section 17 (3A) of 1894 Act. Sub-section (3A) of Section 17 of 1894 Act provided that :
"3[(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub- section (3)- (a) tender payment of eighty per centum of the compensation for such land as estimated by him to the person interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section."
18. In the case at hand the land in question as evident :: 12 ::
W.A.No.292/2017 & W.A.No.288/2017 from the facts adverted supra was declared surplus and vested with the State under 1976 Act, whereover the State Government constructed the hostel. Thus, it is not a case that the possession is taken with the issuance of notification under section 4(1) read with section 17 (1) and 17 (4) for the first time. Rather possession remained with the State after it being vested in it in the year 1983. Furthermore, the State has deposited Rs.5 Crores in an execution proceedings and Rs.12 Lakhs towards mesne profit. In these fact situation the contention that there is non-compliance of Section 17 (3A) must fail.
19. Having thus considered we are of the view that the proceedings for acquisition are not vitiated. However, the question is what compensation the petitioner would be entitled for. Sub-section (2) of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which provides:
"(2) Notwithstanding anything contained in sub-
section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said :: 13 ::
W.A.No.292/2017 & W.A.No.288/2017 proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. "
20. In view whereof, while upholding the proceedings for acquisition the State is directed to assess the compensation as per the stipulation contained in the the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of three months from the date of communication of this order.
21. The Writ Appeal No.292/2017 stand disposed of finally in above term.
In Writ Appeal No.288/2017 :
This intra Court appeal under section 2 (1) of the Madhya Pradesh Uchcha Nayalayay (Khand Peeth ko Appeal) Adhiniyam, 2005 is directed against the order dated 11.5.2017 passed in W.P.No.3685/2010.
2. The said writ petition took exception to order dated :: 14 ::
W.A.No.292/2017 & W.A.No.288/2017 11.5.2017 passed by the Executing Court, wherein an application preferred by the respondent/State of Madhya Pradesh and its functionaries was rejected. Thus, essentially the said writ petition was under Article 227 of the Constitution of India. Recently a Full Bench of this Court in the case of Shaillendra Kumar Vs. Divisional Forest Officer and another, (decided on 6.7.2017 in Writ Appeal No.286/2017) has held:
"18 We may clarify that the orders passed by the Judicial Courts, subordinate to a High Court even in criminal matters when challenged in proceedings before the High Courts are only under Article 227 of the Constitution of India. Thus no intra court appeal would be maintainable against an order passed by the Learned Single Judge in proceedings arising out of an order passed by Judicial Courts, may be civil or criminal proceedings."
3. In view whereof, the Writ Appeal No.288/2017 is not maintainable and is dismissed at the outset.
(Sanjay Yadav) (S.K.Awasthi)
Judge Judge
Pawar/-