J.M Panchal, J.— The respondent Narmada Bachao Andolan (hereinafter called as “NBA”) has filed the aforesaid applications for expunging certain adverse remarks made in paras 152-55 and 168 of the judgment and order in the aforesaid civil appeals dated 11-5-2011 (2011) 7 SCC 639.
2. These applications have been filed on the grounds that adverse remarks made against the applicants are unwarranted and uncalled for 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.
3. In the said appeals, a large number of factual and legal issues had arisen. However, this Court was concerned with the acquisition of land to the extent of 284.03 ha falling in five 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 provisions of Section 48 of the Land Acquisition Act, 1894 (hereinafter called “the 1894 Act”).
4. When the matter came in appeal before this Court, the factual controversy arose as to who was in actual physical possession of the land. 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 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 SLPs (C) Nos. 31047-61 of 2009 and SLPs (C) Nos. 34195-209 of 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 admeasuring 284.03 ha 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 1 i.e Narmada Bachao Andolan and it has been contented that actual physical possession has been taken, which is projected in various 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 ha also.
In the light of the 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 admeasuring 284.03 ha 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 ha 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.”
5. 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 five villages was a nullity and void ab initio because the possession of the land had already been taken in December 2007.
6. 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.
7. The copy of the report along with CDs were supplied to the parties. They were given the 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 the 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 NBA regarding the physical possession of the land was not factually correct. NBA had been afforded full opportunity to make out the case. Their past conduct was also pointed out and dealt with in para 155 of the judgment dated 11-5-2011 (2011) 7 SCC 639.
8. In fact the application filed by the State under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) 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.
9. 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 blacklisting NBA. 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. Therefore, adverse remarks have been made by this Court under total misconception and the same be expunged.
10. 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.
11. In State Of U.P v. Mohammad Naim . AIR 1964 SC 703, (1964) 1 Cri LJ 549, 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: (AIR p. 705, para 3)
“3. (b) That there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force.”
12. This Court held that the Court in its inherent jurisdiction can expunge the adverse remarks suo motu 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.
13. 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 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.
14. This view has been persistently approved and followed by this Court as is evident from the judgments in Jage Ram v. Hans Raj Midha (1972) 1 SCC 181, AIR 1972 SC 1140, R.K Lakshmanan v. A.K Srinivasan (1975) 2 SCC 466, AIR 1975 SC 1741, Niranjan Patnaik v. Sashibhusan Kar (1986) 2 SCC 569, AIR 1986 SC 819, Major General I.P.S Dewan v. Union of India (1995) 3 SCC 383, (1995) 29 ATC 579, Dilip Kumar Deka v. State of Assam (1996) 6 SCC 234 and State of Maharashtra v. Public Concern for Governance Trust (2007) 3 SCC 587, AIR 2007 SC 777.
15. 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.
16. 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 to 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.
17. Observations/Remarks made in the judgment dated 11-5-2011 (2011) 7 SCC 639 are based on the pleadings taken into consideration as has been taken note of in paras 138-39 which mainly read as under: (Narmada Bachao Andolan case (2011) 7 SCC 639)
“138. 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 five villages of the oustees were acquired by notifications issued under the Land Acquisition Act and NVDA has now passed an order on 2-4-2009 saying that the land/property of these five 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 five villages and for the purpose of rehabilitation, the order dated 2-4-2009 of NVDA is of no consequence. The two IAs stand disposed of.’
139. 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:
(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 Court, Devas; the land record of the Revenue Authorities of the State Government, the order of the Land Acquisition Officer and the affidavits of the oustees concerned which were placed on record before the said authorities.
(c)-(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)
18. 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 NBA the guidelines laid down by this Court in Mohd. Naim AIR 1964 SC 703, (1964) 1 Cri LJ 549 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.
19. However, the learned counsel appearing for the applicants have submitted that the NBA has rendered great service for a long number of years to the downtrodden and poor farmers and thus NBA should not be deprived of the opportunity to represent the 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.
20. In view of the above, para 168 of Narmada Bachao Andolan case (2011) 7 SCC 639 stands modified to the extent as under:
“In view of the above, we reach the inescapable conclusion that 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 the 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 NBA with caution and care, insisting on proper pleadings, disclosure of full facts truly and fairly and should insist for an affidavit of some responsible person in support of facts contained therein.”
21. With these observations, the applications stand disposed of.
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