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

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

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