STATE OF MADHYA PRADESHversusNARMADA BACHAO ANDOLAN & ANR.

                         [2011] 11 S.C.R. 678


A                 STATE OF MADHYA PRADESH
                                   v.
             NARMADA BACHAO ANDOLAN & ANR.
              I.A. NOS. 256-270 & 271-285 OF 2011
                               IN
B            CIVIL APPEAL NOS. 2083-2097 of 2011
                       SEPTEMBER 29, 2011
        [J.M. PANCHAL, DEEPAK VERMA AND DR. &..S.
                      CHAUHAN, JJ.]
c
          Adverse remarks: Expunction of - In a land acquisition
    case, the State Authorities took a decision to abandon the
    land acquisition proceedings - Before High Court, applicant-
    respondent pleaded that order of the Authorities to abandon
D   the proceedings was void ab initio as possession of the land
    in dispute had already been taken - High Court held that as
    the possession of land had already been . taken, it was not
    permissible for the Authorities. to resort to withdrawal of the
    proceedings - Before Supreme Court, applicant took stand
E   that the. tenure holders of the land had already been
    dispossessed and, therefore, the question of abandoning the
    land acquisition proceedings could not arise - Authorities
    pleaded that actual physical possession was still with the
    tenure holders and the stand taken by applicant was not
F   factually correct - The Supreme Court directed appointment
    of Local Commissioner to find out who was in possession -
    Local Commissioner recorded the statements of tenure
    holders in the presence of representative of the applicant and
    filed the report that the tenure holders were in actual physical
    possession of the said land - The applicant was given
G   opportunity to file objections - Thereafter, the Court held that
    :;mce the finding of the Local Commissioner was recorded in
    the presence of representative of applicant, the same was
    worth acceptance and in view thereof the claim made by

H                                 678
    STATE OF MADHYA PRADESH v. NARMADA                       679
           BACHAO ANDOLAN & ANR.
applicant regarding the physical possession of land was not          A
factually correct and passed certain adverse remarks in the
judgment - Application seeking expunction of remarks on the
                               I

ground that the word 'possession' denoted different meaning
so far as 1894 Act and Resettlement and Rehabilitation
Policy were concerned and, therefore, adverse marks were             B
 made under total misconception - Held: In the instant case,
 the Court had not to decide the issue of justification of the
 tenure...flolders for retaining the possession of the land rather
 the question was, as to who was in actual physical possession
 of the land - Had it been the case of justification of retaining    c
 the possession of the land by the tenure-holders without being
 rehabilitated, the question of appointing the Commissioner
 would not have arisen - The applicant cannot be permitted
 to make out a new case to justify expunging of adverse
 remarks - More so, while making certain observation against         D
 the applicant, the guidelines laid down by the Supreme Court
 in Mohd. Nairn had strictly been -observed - Remarks were
 made as it was necessary to do so while deciding the
 controversy involved therein - However, -submission made by
 the applicant that it has rendered great service for down           E
 trodden and poor farmers and thus applicant· should not be
 deprived of the opportunity to represent poor peasants - In
 view thereof, para 145 of the earlier judgment modified to the
 extent that although the applicant ·had 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       F
 balance between the interests of the parties and thus it is
 desirable that in future the court must view presentation of any
 matter by the applicant 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        G
 support of facts contained therein - Land Acquisition Act,
  1894.

   Administration of Justice: Adverse remarks - Held: Court
may not be justified in making adverse remarks/strictures H
     680      SUPREME COURT REPORTS                [2011] 11 S.C.R.


A    against a person unless it is necessary for the disposal of the
     case to animadvert to those aspects in regard to the remarks
     that were made - 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
 B   to the other party.

          State of U.P. v. Mohammed Nairn AIR 1964 SC 703:
     1964 SCR 636; Jage Ram, Inspector of Police and Anr. v.
     Hans Raj Midha AIR 1972 SC 1140: 1972 2 SCR 409; R.K.
     Lakshmanan v. A.K. Srinivasan & Anr. AIR 1975 SC 1741:
C    1976 (1) SCR 204; Niranjan Patnaik v. Sashibhusan Kar &
     Anr. AIR 1986 SC 819: 1986 (2) SCR 470; Major General
     l.P.S. Dewan v. Union of India & Ors. (1995) 3 SCC 383:
     1995 (2) SCR 532; Dr. Dilip Kumar Deka & Anr. v. State of
     Assam and Anr. (1996) 6 SCC 234: 1996 (5) Suppl. SCR
 D   763; State of Maharashtra v. Public Concern for Governance
     Trust and Ors. AIR 2007 SC 777: 2007 (1) SCR 87 - relied
     on.
                           Case Law Reference:
"E         1964 SCR 636               relied on        Para 10, 15
           1972 2 SCR 409             relied on        Para 11
           1976 (1) SCR 204           relied on        Para 11

F          1986 (2) SCR 470           relied on        Para 11
           1995 (2) SCR 532           relied on        Para 11
           1996 (5) Suppl. SCR 763 relied on           Para 11
           2007 (1) SCR 87            relied on        Para 11
G
         CIVIL APPELLATE JURISDICTION: I.A. Nos. 256-270 &
     271-285 of 2011 in Civil Appeal No. 2083-2097 of 2011.

         From the Judgment & Order dated 23.9.2009 of the High
H    Court of Madhya Pradesh at Jabalpur in IA Nos. 4679109, 48041
    STATE OF MADHYA PRADESH v. NARMADA                      681
           BACHAO ANDOLAN & ANR.
09, 10476/08,
           \
              10973/08,
                   '
                        7009/09, 8103/09, 8890/09, 8955/09,         A
7010/09, 8078 of 2007, 8079/09, 8211/08, 5249/09, 7599/09
and 6407/09 in W.P. No. 4457 of 2007.
                   ,.
                             WITH

I.A. NOS. 31-45 & 46-60 of 2011                                     B

Civil Appeal Nos. 2098-2112 of 2011

    C.D. Singh, Ram Swarup Sharma for the Appellant.

    Nikhil Nayyar for the Respondents.                              c
    The Order of the Court was delivered by

                          ORDER

     J.M. PANCHAL, J. 1. The respondent Narmada Bachao              D
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.
                                                                    E
    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          F
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    G
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       H
    682       SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A   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 1894 Act).

       3. When the matter came in appeal before this Court, the
8
  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
  th~ .question of abandoning the land acquisition proceedings
  could not arise. The State authorities submitted that actual
C 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
D         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-
E         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
F
          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
G
          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
H
   STATE OF MADHYA PRADESH v. NARMADA                          683
  BACHAO ANDOLAN & ANR. [J.M. PANCHAL, J.]
    the learned District Judge, Indore to make a spot                 A
    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         8
    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         c
    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."                                     D
     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 nullity ahd void ab-initio
because the possession of the land had already been taken in          E
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               F
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         G
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
                                                                      H
    684     SUPREME COURT REPORTS                [2011) 11 S.C.R.


A 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 also pointed out and dealt
B 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
C 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
D 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 judgrr.ent as it amounts to black
  listing the NBA. The NBA had taken a consistent stand
  throughout the proceedings that the word 'possession' denotes
E 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
F 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
G 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/
H meaningless as a futile exercise. Thus, the applications are
   STATE OF MADHYA PRADESH v. NARMADA                        685
  BACHAO ANDOLAN & ANR. [J.M. PANCHAL, J.]
liable to be rejected.                                              A

     10. In State of UP. v. Mohammad Nairn, 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      B
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."

     This Court held that the court in its inherent jurisdiction can
expunge the adverse remarks suo moto or even on application ·· C
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 D
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 E
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
                                                                     F
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;                                                       G

     (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
                                                                    H
    686      SUPREME COURT REPORTS                 [2011] 11 S.C.R.

A         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
8 SC 1741; Niranjan Patnaik v. Sashibhusan Kar & Anr., AIR
  1986 SC 819; Major General l.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.,
C AIR 2007 SC 777.

        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
o   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.
E        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
F   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
G 11.5.2011 are based on the pleadings taken into 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
H
 STATE OF MADHYA PRADESH v. NARMADA                          687
BACHAO ANDOLAN & ANR. [J.M. PANCHAL, J.]
 whether the possession of the land has actually been taken          A
 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       B
 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            C
          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   D
          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."
                                                                     E
 115. The appellants herein have raised an objection that
 the tenure hqlders 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          F
 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          G
 the five villages is a nullity and void ab initio because the
 possession of the lands has already been taken. The lar.id
 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,          H
    688         SUPREME COURT REPORTS                [2011] 11 S.C.R.


A         the order of the Land Acquisition Officer and the affidavits
          of the concerned oustees which were placed on record
          before the said authorities.

          (c) .....
B
          (d) ·····

          (e) ..... .

          (f) ..... .
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
D         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
E 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 down by this
  Court in Mohd. Nairn (Supra) had strictly been observed.
  Remarks have been made as it was necessary to do so while
F 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
G long number of years to the down trodden and poor farmers
  and thus NBA should not be deprived of the opportunity to
  r~present 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.

H
    STATE OF MADHYA PRADESH v. NARMADA                         689
   BACHAO ANDOLAN & ANR. [J.M. PANCHAL, J.]
    16. In view of the above, para 145 of the judgment stands         A
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. B
       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 C
       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."
                                                                      D
    17. With these observations, the applications stand
disposed of.

D.G.                                   Applications disposed of.