REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NOS. 256-270 & 271-285 OF 2011
IN
CIVIL APPEAL NOS. 2083-2097 of 2011
State of Madhya Pradesh ...Appellant
Versus
Narmada Bachao Andolan & Anr. ....Respondents
WITH
I.A. NOS. 31-45 & 46-60 OF 2011
IN
CIVIL APPEAL NOS. 2098-2112 of 2011
O R D E R
J.M. PANCHAL, J.
1. The respondent Narmada Bachao Andolan (hereinafter
called as NBA) has filed the aforesaid applications for
expunging certain adverse remarks made in paragraphs
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129-132 and 145 of the judgment and order in the aforesaid
civil appeals dated 11.5.2011.
2. These applications have been filed on the grounds that
adverse remarks made against the applicants are
unwarranted and uncalled nor based on any
material/evidence on record. More so, they were not
necessary to adjudicate upon the controversy involved in
the appeals. Thus, the same may be expunged.
In the said appeals, a large number of factual and legal
issues had arisen. However, this court was concerned with
acquisition of land to the extent of 284.03 hectares falling in
5 villages named therein for the reason that the State
authorities had taken a decision to abandon the land
acquisition proceedings and not to conclude the same.
Before the High Court the applicants had pleaded that order
of the Authorities to abandon the proceedings was void ab-
initio as possession of the land in dispute had already been
taken. The High Court came to the conclusion that as the
possession of the land in dispute had already been taken it
was not permissible for the appellants herein to resort to the
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provisions of Section 48 of the Land Acquisition Act, 1894
(hereinafter called 1894 Act).
3. When the matter came in appeal before this Court, the
factual controversy arose as to who was in actual physical
possession of the land. The NBA had taken a stand that as
the tenure holders of the said land had already been
dispossessed the question of abandoning the land
acquisition proceedings could not arise. The State
authorities submitted that actual physical possession is still
with the tenure holders and the stand taken by the NBA
was not factually correct. It was in view thereof that this
court on 24.2.2011 passed the following order:
"The learned counsel appearing for the parties
would be at liberty to submit their written
submissions within 10 days from today in SLP(C)
Nos. 31047-31061/2009 & SLP(C) Nos. 34195-
34209/2009. However, during the course of
hearing it has been seriously contended by the
State of M. P. that actual physical possession of
the land ad-measuring 284.03 hect. falling in five
villages viz. Dharadi, Kothmir, Narsinghpura,
Nayapura and Guwadi has not been taken by the
State, in spite of resorting to acquisition
proceedings to a certain extent. This fact has
been seriously refuted by respondent No.1 i.e.
Narmada Bachao Andolan and it has been
contented that actual physical possession
has been taken, which is projected in various
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documents including the affidavits sworn by the
oustees/cultivators of the said land. They have
also placed reliance on the entries in the revenue
records which reflected the position that the
Executive Engineer of the Company was in
possession of the said land measuring 284.03
hect. also. In the light of serious contentions
raised by both the parties it is in fact not possible
for us to come to a definite conclusion as to who
is in actual possession of the land today.
In view of this, we deem it fit and
proper to request the learned
District Judge, Indore to make a
spot inspection and submit his report with regard
to the land ad-measuring 284.03 hect.
situated in the aforesaid five villages. Before
going to the spot, he will inform the parties
concerned so that they may, if so desire,
remain present at the time of
inspection and render proper
assistance in identifying the land in question.
We clarify that we are not concerned
with the total land of those villages,
rather the controversy is limited to 284.03
hect., which the State does not
want to acquire. It may also be mentioned in
the report as to whether there is any crop
standing on the said land or part of it and if it is
so, who had sown the crop. If the crop has
recently been removed or land has been tilled,
who has done so. Let the report be submitted
by the District Judge within a period of 15 days
from the date of communication of this order."
4. Such an order was necessary for the reason that the
affidavit filed on behalf of `NBA' dated 1.7.2010 clearly
provided that the order passed by the authorities dated
2.4.2009, not to acquire the land of the 5 villages was a
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nullity and void ab-initio because the possession of the land
had already been taken in December 2007.
5. In pursuance of the said order, the District Judge,
Indore videographed the entire land in dispute and
recorded the statements of the tenure-holders in the
presence of the representative of `NBA' and came to the
conclusion that the tenure-holders were in actual physical
possession of the said land.
6. The copy of the report along with CDs were supplied to
the parties. They were given opportunity and they availed
the same by filing objections thereto and advanced their
arguments. It was after considering the same, the matter
was decided, wherein finding has been recorded that as the
report was prepared in presence of the representative of
`NBA', the same was worth acceptance and it was in view
thereof, further a finding was recorded that the claim made
by the `NBA' regarding the physical possession of the land
was not factually correct. The `NBA' had been afforded full
opportunity to make out the case. Their past conduct was
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also pointed out and dealt with in paragraph 133 of the
judgment dated 11.5.2011.
7. In fact the application filed by the State under Section
340 of the Code of Criminal Procedure, 1973 (hereinafter
called Cr.P.C.) was at a later stage, i.e. on 31.3.2011 and
this court has not decided the same. Therefore, the
contents of that application or issuance of notice on the
same did not have any bearing so far as the main judgment
is concerned.
8. It is in this background the submissions have been
advanced by Shri Rajinder Sachar, Shri Rajiv Dhavan,
learned senior counsel and Shri Sanjay Parikh that there
was no occasion for the court to pass the adverse remarks
in the aforesaid paragraphs of the judgment as it amounts
to black listing the NBA. The NBA had taken a consistent
stand throughout the proceedings that the word `possession'
denotes different meanings so far as the 1894 Act and R & R
Policy are concerned. In law it may be permissible under the
1894 Act that a person may be dispossessed but he may
continue in possession because of the R & R Policy.
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Therefore, adverse remarks have been made by this court
under total misconception and the same be expunged.
9. On the contrary, Shri P.S. Patwalia, learned senior
counsel has vehemently opposed the applications
contending that NBA cannot be permitted to make a totally
new case. The only issue involved had been as who was in
actual physical possession of the land and had it been the
case of NBA that the tenure holders were not in possession
of the land, question of appointing the Commissioner i.e.
District Judge, Indore would not have arisen. Accepting the
submissions made by the applicants would render the order
dated 24.2.2011 insignificant/meaningless as a futile
exercise. Thus, the applications are liable to be rejected.
10. In State of U.P. v. Mohammad Naim, AIR 1964 SC
703, this Court was asked by the State of U.P. - the
appellant, to quash the adverse remarks made by the High
Court of Allahabad against the police department as a whole
e.g.- "That there is not a single lawless group in the whole of
the country whose record of crime comes anywhere near the
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record of that organised unit which is known as the Indian
Police Force."
This Court held that the court in its inherent
jurisdiction can expunge the adverse remarks suo moto or
even on application of a party. However, there must be a
ground for expunging as such remarks were not justified, or
were without foundation, or were wholly wrong or improper
and expunging thereof is necessary to prevent abuse of the
process of the court or otherwise to secure the ends of
justice. However, the court must bear in mind that such
jurisdiction being of exceptional nature must be exercised
only in exceptional cases. The cardinal principle of the
administration of justice requires for proper freedom and
independence of Judges and such independence must be
maintained and Judges must be allowed to perform their
functions freely and fairly and without undue interference
by anybody, even by this Court. However, it is also equally
important that in expressing their opinions the Judges must
be guided by consideration of justice, fair play and restraint.
It should not be frequent that sweeping generalisations
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defeat the very purpose for which they are made. Thus, it is
relevant to consider:
(a) whether the party whose conduct is in
question is before the court or has an
opportunity of explaining or defending himself;
(b) whether there is evidence on record bearing
on that conduct justifying the remarks; and
(c) whether it is necessary for the decision of the
case, as an integral part thereof, to animadvert
on that conduct.
11. This view has been persistently approved and followed
by this Court as is evident from the judgments in Jage
Ram, Inspector of Police & Anr. v. Hans Raj Midha, AIR
1972 SC 1140; R.K. Lakshmanan v. A.K. Srinivasan &
Anr., AIR 1975 SC 1741; Niranjan Patnaik v. Sashibhusan
Kar & Anr., AIR 1986 SC 819; Major General I.P.S.
Dewan v. Union of India & Ors., (1995) 3 SCC 383; Dr.
Dilip Kumar Deka & Anr. v. State of Assam & Anr.,
(1996) 6 SCC 234; and State of Maharashtra v. Public
Concern for Governance Trust & Ors., AIR 2007 SC 777.
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12. Thus, the law on the issue emerges to the effect that
the court may not be justified in making adverse
remarks/passing strictures against a person unless it is
necessary for the disposal of the case to animadvert to those
aspects in regard to the remarks that have been made. The
adverse remarks should not be made lightly as it may
seriously affect the character, competence and integrity of
an individual in purported desire to render justice to the
other party.
13. In the case, at hand, the Court had not to decide the
issue of justification of the tenure-holders for retaining the
possession of the land rather the question was, as who is in
actual physical possession of the land. Had it been the case
of justification of retaining the possession of the land by the
tenure-holders without being rehabilitated, the question of
appointing the Commissioner i.e. District Judge, Indore,
would not have arisen.
14. Observations/remarks made in the judgment dated
11.5.2011 are based on the pleadings taken into
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consideration as has been taken note of in paras 114 and
115 which mainly read as under:
"114. The High Court while dealing with the said
applications did not deal with the issue
specifically as to whether the possession of the
land has actually been taken or even symbolic
possession has been taken by the State; as to
whether the persons interested have been evicted
from the said land; or they have voluntarily
abandoned their possession; or they are still in
physical possession of the land; or as to whether
after being evicted they had illegally encroached
upon the land in dispute. A direction has been
issued observing as under:
"The lands in these 5 villages of the
oustees were acquired by notifications
issued under the Land Acquisition Act, and
the NVDA has now passed an order on
2.4.2009 saying that the land/property of
these 5 villages shall not be acquired and
the action taken till now be dropped as per
the provisions of law.......The respondents,
therefore, will have to provide all the
rehabilitation benefits to the villagers of the
5 villages and for the purpose of
rehabilitation, the order dated 2.4.2009 of
the NVDA is of no consequence. The two IAs
stand disposed of."
115. The appellants herein have raised an
objection that the tenure holders of the said land
are still in actual physical possession and they
had never been evicted. However, on behalf of
the respondent i.e. Narmada Bachao Andolan,
Shri Alok Agrawal, Chief Activist of the
organisation, has filed the counter affidavit dated
1.2.2010 before this Court, wherein it has
specifically been mentioned as under:
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(a) ........
(b) The order dated 2.4.2009 as not to
acquire the land of the five villages is a
nullity and void ab initio because the
possession of the lands has already been
taken. The land has already vested in the
State. This may be seen from the judicial
orders of Reference Courts Devas; the land
record of the revenue authorities of the State
Government, the order of the Land
Acquisition Officer and the affidavits of the
concerned oustees which were placed on
record before the said authorities.
(c) .....
(d) .....
(e) ......
(f) ......
(g) ......
(h) The oustees of the five villages had filed
a large number of affidavits before the
authorities/courts concerned stating that
possession of their lands/properties
acquired had been taken in December
2007.
(Emphasis added)
15. Thus, in view of the above, the arguments advanced on
behalf of the applicants are not justified. The applicants
cannot be permitted to make out a new case to justify
expunging of adverse remarks. More so, while making
certain observation against the `NBA' the guidelines laid
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down by this Court in Mohd. Naim (Supra) had strictly been
observed. Remarks have been made as it was necessary to
do so while deciding the controversy involved therein. The
submissions so made are not worth acceptance.
However, learned counsel appearing for the applicants
have submitted that the NBA has rendered great service for
a long number of years to the down trodden and poor
farmers and thus NBA should not be deprived of the
opportunity to represent poor peasants. Mr. Sanjay Parikh
learned counsel has expressed remorse on behalf of the
applicants that the applicants ought to have acted with
more responsibility.
16. In view of the above, para 145 of the judgment stands
modified to the extent as under:
"In view of the above, we reach the inescapable
conclusion that the NBA has not acted with a
sense of responsibility and not taken appropriate
pleadings as required in law. However, in a PIL,
the court has to strike a balance between the
interests of the parties. The court has to take into
consideration the pitiable condition of oustees,
their poverty, inarticulateness, illiteracy, extent of
backwardness, unawareness also. It is desirable
that in future the court must view presentation of
any matter by the NBA with caution and care,
insisting on proper pleadings, disclosure of full
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facts truly and fairly and should insist for an
affidavit of some responsible person in support of
facts contained therein."
17. With these observations, the applications stand
disposed of.
...........................J.
(J.M. PANCHAL)
...........................J.
(DEEPAK VERMA)
...........................J.
(Dr. B.S. CHAUHAN)
New Delhi
September 29, 2011
