GULAM MUSTAFA & ORS. versus THE STATE OF MAHARASHTRA & ORS.

GULAM MUSTAFA & ORS.

THE STATE OF MAHARASHTRA & ORS.

September 18, 1975 ,

[V. R. KRISHNA IYER AND S. MURTAZA FAZAL ALI, JJ.l

. flyder?bad Lcofld Acquisition Act-Acquisition of land for village market-lf public purpose-Excess land. sold to o hdusing colony-If acquisition ma/a fide.

Certain ·lands belonging to the appellants were compulsorily acquired under-the Hyderabad Land Acquisition Act for running country fair or market (1nDndha). A·fter the acquisition, the municipality parcelled out the excess land and sold it for housing colony. The High Court dismissed the appellants' writ petition, in li111ine.

On app-cal to this Court it wa9 contended that the acquisition was not for public purpose and that it was 1nala fide.

Dismissing the appeal,

HELD: (l)(a) Providingi village market.is an obvious .public purpose.

[876C-Dl

( b) ntondha is country fair or village market. Market is defined in. s. 2(20) of the Hyderabad District Municipalities Act in wide terms and s. 72 of the said Act enumerate9 the purposes for which property may be vested in municipality. This includes markets. It inexorably follows from joint reading of Ss. 2(20) and 72(a) of the District Municipalities Act that the purpose of providing mark_et for the townsfolk falls within the oowers of the municipality. [876G-H]

(2)(a) Striking down. any Act for nwfa fide exercise of poWer is judiciai reser..,.'ed power exercised lethally, but rarely. The charge of mala fides agaimt public bodies and authorities is more 'easily made than made out. It is the last refuge of losing litigant. [876D]

(b) What has to be established is nwla fide exercise of power by the State Govemment although the beneficiary is the municipality. There is no. evidence of 111afus ani1nus in Government. [877B]

(c) Apart from the fact that horn~ing colony is public necessity, onoo the original acquisition is valid and title has vested in the municipality how it uses the excess land is no concern of the original owner and cannot be the basis for invalid~ting the acquisition. There is no principle of law by which valid compulsory acquisition stands voided because long later the requiring authority diverts it to public purpose other than the one stated in the dcclara-lion. [877C]

CIVIL APPELLATE JURISDIC'!'.ION : Civil Appeal No. 675 of 1968.

From the judgmt\nt and order dated the 19th January, 1967 of the Bombay High Court in S.C.A. No. 16 of 1967.

s. J. Deshpande and A. G. Ratnaparkhi, for the appellant.

M. C. Bhandare and M. N. Shroff, for respondent nos. 1. 2 and 4. D. V. Patel, K. Laxmanrao and S. Gopalakrishnan, for respondent no. 3 ·

The Judgment of the Court was delivered by

KR1sHNA IYER, J. Brevity will do no inequity in this appeal where three points were urged but only ()Ille survives for serious scanning. The subject matter is the validity of land acquisition pro-ceedings whereby Municipality compulsorily purchased the appel-lant's land for the stated public purpose of running country lair or market (mondha) under the Hyderaba!d Land Acquisition Act (for short, the Act) which is closely similar to the Land Acquisition Act, 1923 (Central Act). The first charge is that the High Court dis-missed the Writ Petition in limine. Seven years after the 1968 event, we cannot consider sending back the case even if there be justice in the submission. We have therefore heard counsel Shri Deshpande on his substantive grievances. The second contention is that there is no 'public purpose' to support the acquisition which is allegedly ultra vires the Municipality's powers. We disagree. Providing village market is an obvious public purpose and municipal facility. The fast plea which has been pressed strenuously is that the acquisi-tion exercise is ba\l being ma/a fide-an uphill task to make out against public body. Was this colourable exercise of power?Striking down any act for mala fide exercise of power. is judicial reserve pQwer exercised lethally, but rarely. The charge of mala-fides against public bodies and authorities is more easily made than made out. It is the last refuge of a! losing litigant. Even so, we will examine the merits oil' the contention here from the point of view of the serious factors placed for our consideration.

Was .this acquisition done colore ofjicii? The circumstances relied on may be examined from this standpoint. Section 5 ( 3) of the Act provides for declaration of the pnblic purpose, like s. 6 ( 3) of the Central Act. This declaration was made in 1960 and covered at least 28 acres of land belonging to the appeUant. His counsel contends that there in no public purpose mentioned in the notifica• tion because what is stated is 'g;overnment purpose'. There is no force in this terminological deviation. The purpose has been set down as for 'mondha' or 'country fair' which is obviously public purpose. So counsel shifted to another shade of the same argument and stateid that 'mondha' is not wor'd known to law and has not been definen anywhere and so such purpose cannot be· taken cognizance of by the law. We cannot agree to tli~ linguistic game masquerading as legal point. It is plain that 'mondha' is countrv fair or village market. 'Market' is defined in s. 2(20) of the Hyderabad District Municipalities Act in Wide terms, and s. 72 of the said Act enumera•es the purposes for which property may be vested in municipality. This includes 'markets'. It inexorably follows from ioint reading of ss. 2(20) and 72(a) that the purpose of providing market for the townsfolk falls within the powers of municipality.

Failing here, counsel finally stressed that in any case no market for small municipal town requires. 28 acres of land, especially because the Master Plan prepared for the Municipality had allotted

only 15 acre,s for this purpose. It is not for the Court to investigate into the are_a necessary for running market. Moreover there is no mala [ides emerging from this circumstance. What has to be established is mala fide exercise of power by the State Government-the acquiring authority-although the beneficiary of the acquisitiolll is etventually the Municipality. There is no scintilla of evidence suggestive of ma/us animus in Government. l3

At this stage Shri Deshpande complained that actually the Municipal Committee had sold away the excess land marking them out intQ separate plots for housing colony, apart from the fact that housing colony is public necessity, ouce the original acquisition is valid and title has vested in the Municipality, how it uses the excess lanU is no1 concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which valid compulsory acquisiton stands voided because long later the requiring authoritr diverts it to public purpose other than the one stated in the s. 5(3) declaration.

There is no merit in the appeal which is dismissed without costs. P.B.R . . Appeal dismissed.

P.B.R . .