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2003 (3) TMI 737 - SUPREME COURT OF INDIA

2003 (3) TMI 737 - SUPREME COURT OF INDIA - TMI - Appeal (Civil) No. 6969 of 1999 - Dated:- 11-3-2003 - Doraiswamy Raju And D. M. Dharmadhikari, JJ. JUDGMENT D. M. Dharmadhikari, J. This appeal has been preferred by the State of Andhra Pradesh and its Authorities against the Division Bench judgment dated 22.7.1999 passed by the High Court of Andhra Pradesh in Writ Appeal No. 652 of 1999. The Division Bench upheld the order dated 29.12.1998 of the learned Single Judge of the High Court. On the ba .....

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the ground that it had become dilapidated and required reconstruction. By order dated 15.12.1979, the Rent Controller, Hyderabad dismissed the eviction petition. The Additional Chief Judge, City Small Causes, Hyderabad by its order made on 15.3.1989 in the appeal of the tenant granted eviction of the State from the school building. During pendency of appeal, the respondent/owner approached the High Court of Andhra Pradesh in Writ Petition No. 6487 of 1988 seeking early eviction of the State on .....

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espondent that only in order to frustrate the decree of eviction and to avoid the delivery of possession of the land and school building to the owner in compliance with the directions made by the High Court in Writ Petition No. 6487 of 1988 and in breach of undertaking given by the State to vacate, the State hurriedly issued on 26.4.1989 notifications under Section 4(1) and Section 6 of the Land Acquisition Act for acquisition of the building and premises of the school. Later in the proceedings .....

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le Judge, on taking into consideration the time and manner of the acquisition proceedings, came to the following conclusion:- "In my view, the said exercise of power under Section 4(1) of the Act is to circumvent the Civil Court decree and the High Court order under Article 226 of the Constitution of India. The exercise of power under Section 4(1) of the Act is not fair and it is only to scuttle a valid decree passed by the Civil Court which amounts to 'malice in law'. The power und .....

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ona fide also took into consideration the fact that minimum norms fixed by State itself for setting up a school with facilities like play grounds, lecture hall and open space were not fulfilled in the case of school building in dispute. It also observed that school building was hundred years old and was declared unfit for human habitation as back as in the year 1990. The State Government took no action for past several years to acquire the building. The proceedings for acquisition were commenced .....

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gs under the Rent Control and Eviction Act, its independent 'right of eminent domain' was not lost to acquire under due process of law the building for urgent public purpose. Reliance is placed on the decisions of this Court in State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. [1952 SCR 889]; Prabodh Sagar vs. Punjab State Electricity Board & Ors. [2000 (5) SCC 630] and First Land Acquisition Collector & Ors. v. Nirodhi Prakash Gangoli & Anr. [2002 ( .....

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building to the owner without waiting for culmination of the proceedings of eviction pending in appeal before City Small Causes Court. It is pointed out that at the stage when the State Government had undertaken to the High Court to deliver possession of the school building, the proceedings for acquisition under Land Acquisition Act were initiated. The High Court, therefore, was right in coming to the conclusion that the action of the State lacked bona fides and was clearly an attempt to frustra .....

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sion made is that since the school building was in dangerous condition and the school having been already shifted at an alternative site, this Court in exercise of its power under Article 136 of the Constitution of India should refuse to interfere in the order of the High Court. In the alternative, it is prayed that the State Government be directed to reconsider its decision for retaining the school building as the school stands shifted to a new location. The legal meaning of malice is "ill .....

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rds and Phrases legally defined in Third Edition, London Butterworths 1989]. 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, expla .....

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to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings. It is true that the school building is hundred years old. It is in dilapidated condition and at the time, the High Court, in earlier Writ Petition directed the State to deliver the possession of the building, it was found to be in dangerous condition. Nonetheless, it cannot be denied that the State was running a school in the building since the year 1954. The schoo .....

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catering to the educational needs of the children residing in the heart of the city. It cannot be seriously disputed that the continuance of the school at the same location would serve public purpose of fulfilling educational needs of children in the old city. The High Court of Andhra Pradesh held the action of acquisition of the property by the State as malicious in law only because before passing of the adverse orders by the court against it, no action for acquisition of the building which wa .....

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vacate issued by the High Court only provide just, reasonable and proximate cause for resorting to acquisition under the Land Acquisition Act. Resort, therefore, to acquisition at a stage when there was no other alternative but to do so to serve a genuine public which was being fulfilled from 1954 signify more a reasonable and just exercise of statutory power. Such exercise of power cannot be condemned as one made in colourable or mala fide exercise of it. Reliance on the decision of this Court .....

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nd acquisition proceedings can be held to be actuated by any purpose other than public purpose. From the circumstances placed before us, we do not find that public purpose does not exist for the State to acquire the school premises. The position of the State as a landlord is different from its position as a sovereign State with 'right of eminent domain' over all landed properties. It is obvious that as a tenant the State had several inhibitions in law in effecting substantial repairs to .....

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anced on behalf of the respondent/owner that as the school building in question does not conform to norms fixed, the State cannot be allowed to act against its own norms fixed for setting up of a school. It is futile to apply an order of the government dated 31.7.98 made w.e.f. 01.8.1998 in testing the reasonableness of the acquisition or its desirability as also the utility of the same to a public purpose. Public interest undoubtedly in such building was being served from 1954 onwards at the sa .....

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ed the right of State of 'eminent domain' that is 'the right of compulsory acquisition of any private property'. This power of eminent domain of the State is sovereign power over powers and rights of private persons to properties. The High Court of Andhra Pradesh has referred and distinguished Division Bench decision of its own court. We find that challenge in similar circumstances by private owners to the action of acquisition taken by the State and the contention based on malic .....

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o protect the building. As found by the civil court, on adducing evidence in a suit that the Department had encroached upon the respondent's land which was directed to be demolished and delivery of possession to be given. It is seen that when that land was needed for a public purpose, i.e. as part of public office, the State is entitled to exercise its power of eminent domain and would be justified to acquire the land according to law. Section 4(1) was, therefore, correctly invoked to acquir .....

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ve prevailed on the state to resort to the power of eminent domain instead of taking a decision on merits from a Court of Law. In view of the fact that the PWD office building was already constructed and a compound wall was needed to make the building safe and secure and construction was already made, which is a public purpose, the exercise of power of eminent domain is perfectly warranted under law. It can neither be said to be colourable exercise of power nor an arbitrary exercise of power. Se .....

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is called upon to examine the question as to whether the acquisition is mala fide or not, what is necessary to be inquired into and found out is, whether the purpose for which the acquisition is going to be made, is a real purpose or a camouflage. By no stretch of imagination, exercise of power for acquisition can be held to be mala fide, so long as the purpose of acquisition continues and as has already been stated, there existed emergency to acquire the premises in question. The premises whic .....

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