PETITIONER:
NARAYAN GOVIND GAVATE ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT11/10/1976
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1977 AIR 183 1977 SCR (1) 763
1977 SCC (1) 133
ACT
Land Acquisition Act, 1894, ss. 5A, 6 and 17(4)--Burden
of establishing urgency--On whom lies.
HEADNOTE
Certain lands were sought to be acquired by the State
Government under the provisions of the Land Acquisition Act,
1894, the public purpose stated being the development and
utilisation of the lands as a residential and industrial
area. Identical notifications under s. 4 were issued in all
the cases. In one group of lands, declarations that the
provisions of s. 5A shall not apply in respect of the lands
were issued under s. 17(4). With respect to a second group,
declarations under s. 17(4) were issued but were not fol-
lowed up with the s. 6-notification. With respect to a
third group no notification under s. 17(4) was issued but
after the petitioners filed objections, the s. 6-notifica-
tion was issued accompanied by the declaration of urgency
under 8. 17(4).
The owners of the land sought to have the proceedings
quashed on the grounds that, (1) there was no public pur-
pose, and that (2) there was no urgency justifying the
notification under s. 17(4) and dispensing with the enquiry
under s. 5A.
The High Court held that, (1) the notifications under s.
4(1) were valid, and that (2) the State had not discharged
its burden of showing facts constituting the urgency which
impelled it to issue the declarations under s. 17(4) dis-
pensing with the enquiry under s. 5A, and, therefore, those
declarations were invalid, and that the parties were rele-
gated to the position they could take up in the absence of
declarations under s. 17(4). Both sides appealed to this
Court. In the appeals by the State, it was contended by the
appellant-State that the burden of proving that there was
no. urgency was on the owners of the. lands.
Dismissing all the appeals,
HELD: (1) The notifications under 8. 4(1) of the Act
were valid in all the cases. [769 G]
(2) (a) The rules regarding burden of proof are set out
in the Indian Evidence Act, 1872. Section 101 of the Evi-
dence Act lays down that whoever desires any Court to, give
judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those
facts exist, and s. 102 provides that the burden of proof in
a suit or proceeding lies on that person who would fail if
no evidence at all were given on either side. Section 103
provides that the burden of proof as to any particular fact
lies on that person who wishes the ’Court to believe in its
existence, unless it is provided by any law that the proof
of that fact shall lie on any particular person. Section
106 lays down that when any fact is especially within the
knowledge of any person the burden of proving that fact is
upon him. Section 114 of the Evidence Act covers a wide
range of presumptions of fact which can be used by the
Courts in the course of administration of justice to remove
lacunae in the chain of direct evidence before it. [774
C--E; 775 C-E]
(b) The result of a trial or proceeding is determined by
a weighing of the totality of facts, circumstances and
presumptions operating in favour of one party as against
those which may tilt the balance in favour of another. Such
weighment always takes place at the end of a trial or pro-
ceeding which cannot, for purposes of this final weighment
be split up into disjointed and disconnected parts. What is
weighed at the end is one totality against another and not
17--1234SCI/76
764
selected bits or scraps of evidence against each other.
Such total effect of evidence is determined at the end of a
proceeding not merely by considering the general duties
imposed by ss. 101 and 102 but also by the special or par-
ticular ones imposed by other provisions such as ss. 103 and
106. In judging whether a general or particular or special
onus has been discharged the Court will not only consider
the ’direct effect of the oral and documentary evidence led
but also what may be indirectly inferred because certain
facts have been proved or not proved though easily capable
of proof if they existed at all and such proof of other
facts may raise either, a presumption of law or fact. The
party against which a presumption may operate can and must
lead the evidence to show why the presumption should not be
given effect to. If the party which initiates the proceed-
ing or comes with a case to Court offers no evidence in
support of it. the presumption is that such evidence does
not exist and if some evidence is shown to exist on a ques-
tion in issue but the party which has it within its power
to. produce it does not, despite notice to do so, produce
it, the natural presumption is that it would, if produced,
have gone against it. Similarly, a presumption arises from
failure to discharge a special or ’particular onus. The
doctrine of onus of proof becomes unimportant when there is
sufficient evidence before the Court to enable it to reach a
particular conclusion in favour of or against a party. The
principle of onus of proof becomes important in cases of
either paucity of evidence or where evidence given by two
sides is so equivalenced that the Court is unable to hold
where the truth lay. The question whether an onus probandi
has been discharged is one of fact. Sufficiency of evidence
to discharge the onus probandi is not examined by this Court
as a rule in appeals by special leave granted under Art. 136
of the Constitution,. but placing an onus where it did not
lie may be. so examined in appropriate cases.
[775 H; D--G; 778 C--D; 774 G]
Swadeshi Cotton Mills Co. Ltd. v. The State of U.P. &
Ors. [1962] 1 S.C.R. 422. 434 and Raja Anand Brahma Shah v.
State of U.P. & Ors. [1967] 1 S.C.R. 373 at 381 referred to.
I. G. Joshi etc. v. State of Gujarat & anr. [1968] 2
S.C.R. 267 held inapplicable.
(c) Section 17(4) of the Land Acquisition Act has to be
read with ss. 4(1) and 5A of the Act. The immediate purpose
of a notification under s. 4(1) of the Act is to enable
those who may have any objections to lodge them for purposes
of an enquiry under s. 5A. Considering the nature of the
objections which are capable of being successfully taken
under s. 5A, the enquiry should be concluded quite expedi-
tiously. The purpose of s. 17(4) is obviously not merely to
confine action under it to waste and arable land but also to
situations in which an enquiry under s. 5A will serve no
useful purpose, or, for some overriding reason, it should be
dispensed with. The mind of the officer or authority con-
cerned has to be applied to the question whether there is an
urgency of such a nature that even the summary proceedings
under s. 5A of the Act should be eliminated. It is not just
the existence of an urgency but the need to dispense with an
inquiry under s. 5A which has to be considered. [781 G--H;
782]
(d) Even a technically correct recital in an order or
notification stating that the conditions precedent to the
exercise of a power have been fulfilled may not debar the
Court in a given case from considering the question whether,
in fact, those conditions have been fulfilled. And, a
fortiori the Court may consider and decide whether the
authority concerned has applied its mind to really relevant
facts of a case with a view to determining that a condition
precedent to the exercise of a power has been fulfilled. If
it appears upon an examination of the totality of facts in
the case, that the power conferred has been exercised for an
extraneous or irrelevant purpose or that the mind has not
been applied at all to the real object on purpose of a
power, so that the result is that the exercise of power
could only serve some other or collateral object, the Court
will interfere. [779 E---F]
(e) The High Court was wrong in the present case in
laying down a general proposition that the presumption of
regularity attaching to an order containing a technically
correct recital did not Operate in cases in which s. 106,
Evidence Act, was applicable. An order or notification
containing a recital technically correct on the face of it
raises a presumption of fact under s. 114, illustration
765
(e) That presumption is based on the maxim omain praesumun-
tur rite esse acta, that, is, all acts are presumed to have
been rightly and regularly done. ’This presumption, however,
is one of fact. It is an optional presumption which can be
displaced by circumstances indicating that the power lodged
in an authority or official has not been exercised in ac-
cordance with tile law. The totality of circumstances has
to be examined including the recitals to determine whether
and to what extent each side had discharged its general or
particular onus.
[777 E--F]
(f) The High Court had, however, correctly stated the
limited grounds on which even a subjective opinion as to the
existence of the need to take action under s. 17(4) of the
Act can be challenged, namely, main fides, no application of
mind and total want of material on which the opinion is
formed. Therefore, it is for the petitioner to substantiate
the grounds of his challenge under ss. 101 and 102. That
is, the. petitioner has to either lead evidence or show that
some evidence has come from the other side to indicate that
his challenge to a notification or order is made good. If
he does not succeed in discharging that duty his petition
will fail. [776 B--C]
In the present case, in addition to the bare assertions of
the owners of the land that the particular urgency contem-
plated’by s. 17(4) did not exist there were other facts and
circumstances including non-disclosure of any facts and
circumstances which could easily justify the use of s. 17(4)
and which could have been disclosed if they existed; and,
therefore, the petitioners should be held to have discharged
their general onus under s. 101 of the Evidence Act. Thus
the High Court was right in quashing the notifications under
s. 17(4).[778 E]
(g) In the present case, the public purpose. was suffi-
ciently specified to he prima facie a legally valid purpose.
The High Court thought it vague; but, that did not really
affect the judgment of the High Court so much as the total
absence of facts and circumstances which could possibly
indicate that this purpose. had. necessarily to be carried
out in such a way as to .exclude the application of s. 5A of
the Act. Therefore, a .triable issue did arise in these
cases and was decided by the High Court. This issue was
whether the conditions precedent to exercise of power under
s. 17(4) had been fulfilled or not. Such a question can
only be decided rightly after determining what was the
nature of compliance with the conditions of s. 17(4) re-
quired by the Act. [776 D--E]
(i) The public. purpose indicated is. the development of
an area for industrial and residential purposes. This, in
itself, did not make the taking of immediate possession
imperative without holding even a summary enquiry under s.
5A. On the other hand, the execution of such .schemes
generally take sufficient period of time to enable at least
summary inquiries under s. 5A of the Act to be completed
without any impediment to the execution of the scheme. (ii)
All schemes relating to development of industrial and resi-
dential areas must be urgent in the context of the. coun-
try’s need for increased production and more residential
accommodation. Yet, the very nature of such schemes of
development does not appear to demand such emergent action
as to eliminate summary enquiries under s. 5A. (iii) There
is no indication whatsoever in the affidavit filed on behalf
of the State that the mind of the Commissioner was applied
at all to the question whether it was a case necessitating
the elimination of the enquiry under s. 5A. The recitals in
the notification on the contrary indicate that elimination
of the enquiry under s. 5A was treated as an automatic
consequence of the opinion formed on other matters. The
recital does not say at all that any opinion was formed on
the need to dispense with the enquiry under s. 5A. [782 G;
783 C-D]
The burden, therefore, rested upon the State to remove
the defect, if possible, in recitals by evidence to show
that some exceptional circumstances existed which necessi-
tated the elimination of an enquiry under s. 5A and that the
mind of the Commissioner was applied to this essential
question. [783 E]
(h) The High Court has thus correctly applied the provi-
sions of s. 106 of the Evidence Act to place the burden upon
the State to prove those special circumstances, although
the High Court was not quite correct in stating that
766
some part of the initial burden of the petitioners under ss.
101 and 102 of the Evidence Act had been displaced by the
failure of the State to discharge its duty under s. 106 of
the Act. The correct way of putting it would have been to
say that the failure of the State to produce the evidence of
facts especially within the knowledge of its officials,
which rested upon it under s. 106 of the Evidence Act, taken
together with other evidence and the attendant facts and
circumstances, including the contents of recitals, had
enabled the petitioners to discharge their burdens under ss.
101 and 102 Of the Evidence Act in these particular cases.
[783 F--G]
ARGUMENTS
For the Appellant:
It was urged on behalf of the appellant State that the
High Court was in error in placing the burden of proof on
the State. Reliance was placed on the decision of the Su-
preme Court in [1962] 1 S.C.R. 422 (pages 432, 433 and 434).
In particular it was urged that where a statute prescribes
something as a condition precedent for the exercise of
statutory power, and there is a recital of existence of that
condition in the notification then it is presumed that the
statutory condition exists and it is for the’ other side to
bring material before the Court to show that recital is not
supported on any evidence or is made malafide. Similarly,
in [1967] 1 S.C.R. 373 Raja Anands case the very scope of
section 17(4) was discussed and the State relied on the
observations at page 381 indicating the scope of judicial
review original petitioners have not brought their case
within the grounds mentioned in this case.
The Barium Chemicals case and other cases cited can be
easily distinguished on the ground that the statutory re-
quirements for the exercise of particular power, for example
under section 237 of the Companies Act are differently
worded where certain circumstances are required to be
present. The Land Acquisition Act does not require the
existence of any such circumstances. Besides, a decision of
the Supreme Court has clearly indicated the scope of judi-
cial review in [967] 1 S.C.R. 373 and the respondents have
not shown why any different view should not be taken.
Cases like ILR 67 Gujarat 620, AIR 1964 Punjab 477 and
ILR 1970 Cuttack 21 can be easily distinguished. There
specific allegations were made by the petitioners giving
reasons as to why they challenged the notifications. In
reply thereto the State was bound to bring the material to
negative those charges. In the present case if such allega-
tions were made by the writ petitioners the State would have
certainly placed all the necessary materials to negative
those allegations. In the absence of any such allegation
the correct rule to apply was the one stated in [1962] 1 SCR
422 & 433. Apart from this it may be noticed that by
amending paragraph XVI (ARP) was introduced which made some
effort to make concrete allegations regarding the invalidity
of the notification under section 17(4). The’ substance
of these allegations is that out of the whole area which is
to be acquired urgency clause has been applied only to some
areas and, therefore, petitioners prayed that an inference
of’ exercise of powers in a casual and lighthearted manner
should be drawn. To this averment, and since such concrete
allegation was made a concrete reply has been given by the
State in para 6 at Record Page 55 explaining why some lands
were selected for urgency clause and why some notifications
were issued earlier and why others came to be issued later.
It is not open to. the respondents to enlarge their attack
on grounds other than those which are stated in para. 16A.
Lastly it was urged that the satisfaction under section
17(4) is not subjective satisfaction but must be an objec-
tive test because section 17(4) should be deemed to be
controlled by section 17 sub-sections 1 and 2. In the first
place such a, contention was never raised in the High Court.
Secondly, there are number of decisions of the Supreme Court
where the opinion which is to be formed on s. 17(4) is
held to be subjective satisfaction. Thirdly,
767
the contention does not interpret complete provisions of
section 17(1), 17(2) and 17(4). It is submitted under
section 17(1) and 17(2) on one’ hand ,and the power under
17(4) are two separate and independent powers which can be
exercised at different stages of the Land Acquisition pro-
ceedings. Vide AIR 1970 Allahabad 151--Hakim singh versus
State of Uttar Pradesh, under 17(1) possession can be taken
without there being an award under section 11 but there has
to be a publication of a notice under section 9(1) and
also a notification under section 6 preceded by
an inquiry under section 5(a). In such cases and the cases
covered by 17(2) the urgency may be determined on an objec-
tive basis but the whole purpose of s. 17(4) is to dispense
with an enquiry under section 5(a) which is to be followed
again by a notification under section 6 and for such a
purpose all that is required is that in the case of any
land in the opinion of the appropriate Government the
provision of sub-section 1 or sub section 2 are applica-
ble. In other words the lands must be either waste of
arable lands (which is, of course to be determined objec-
tively) but so far as the question of urgency is
concerned it is the opinion that the Government has to form
and that is not to be established by any objective test but
its subjective satisfaction.
For the Respondents:
The Appellant (the State of Maharashtra) tried to argue
that lack of bonafides were not argued in the Court below.
In the pleadings of the Respondents (the writ petitioners)
it was urged at pages 10 and 11 of the record that in fact
it is significant that in some cases the lands which are
sought to be acquired for the same purpose vis-a-vis for
development and utilisation of the land as industrial and
residential area the urgency clause has not been applied.
It was further stated at page 11 that the power under
Section 17(4) has ’been exercised in casual and light-heart-
ed manner . without there being any proper application of
mind to the condition requisite for the exercise of that
_power. The said point was argued before the High Court and
the High Court dealt with the same at pages 61 to 70 of the
record.
It was argued before this Honble Court that the
circumstances under Section 17(4) is not subjective satis-
faction but an objective test since Section 17(4) is con-
trolled by Section 17(1) and (2).
It was further argued that the Government never applied
its mind nor did it place before the High Court any material
to show that there was any urgency with respect to some of
the lands and no urgency in respect to the others. It is
admitted that the lands in all these cases were acquired for
the same purpose inter alia for the development and utilisa-
tion of the said lands as an industrial and residential
area.
It was further argued that the burden of proof on the
facts of these cases would be on the State since the reasons
for urgency are only in the knowledge of the authority
issuing the Notification. The cases cited by the Counsel
for the State have no application since in those cases the
petitioners could establish that the impugned notification
was not bona fide.
In this case the respondent, land owners, had in their
Writ Petitions specifically raised the question that the
authority had not applied its mind and treated it light-
heartedly ’and the Notification was not bona fide.. The
State however did not place any material before the Court to
show that the authority had applied its mind or there was
any clue to the urgency.
The respondents have ’been deprived of their right to
prefer objections under Section 5A of the Act and those
objections are to be filed within 30 days. The notifications
in this case have been made at the interval of months and
even more than a year. The notification under Section 17(4)
was made with respect to some lands and it was not made with
respect to other. The State has not satisfactorily ex-
plained the reasons for this. From all these facts and
circumstances the respondents argue that the notification
under
768
Section 17(4) was not bonafide and the authority had not
applied its mind, and the High Court was right in setting
aside the said notification.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1616-1621
69
Appeals from the Judgment and Order dated 16th/l9th of
Jun& 1967 of the Bombay High Court in S.C.A. Nos. 1971/64,
115:, 216, 343, 345 and 579/65 and
CIVIL APPEAL NOS. 1411-1413/69
Appeals from the Judgment and Order dated 16-6-67 of
the Bombay High Court in S.C.A. Nos. 1971/64, 115 and
345/65.
M. Natesan, A.K. Sen (In CA 1412/69), Nannit Lal and
Lalita Kohli In CAs. 1616-1621/69 and Respondents in CAs.
1411-1413/ 69.
M.H. Phadke, M.N. Shroff for Respondents In CAs.
16161621/69 and for Appellants in CAs. Nos. 1411-1413/69.
The Judgment of the Court was delivered by
BEG, J. There are nine appeals before us, after certifi-
cation of fitness of the cases for appeals to this Court,
directed against orders governed by the same judgment of a
Division Bench of the High Court of Maharashtra disposing of
Writ Petitions relating to four groups of lands, which were
sought to be acquired under the provisions of the Land
Acquisition Act, 1894 (hereinafter referred to as ’the
Act’).
A notification dated 11th October, 1963, under’ Section 4
of Act, was published in the Maharashtra Government Gazette
with regard to the first group. The public purpose recited
in the notification was "development and utilisation of said
land as a residential and industrial area". The noti-
fication goes on to state:
"AND WHEREAS the Commissioner, Bombay Division,
is of the opinion that the said lands were waste or
arable lands and their acquisition is urgently
necessary, he is further pleased to direct under
sub-section (4) of Section 17 of the said Act,
that the provisions 01; Section 5-A of the said’
Act shall not apply in respect of the said land".
Thereafter, a notification was issued under section 6 of the
Act on 19th December, 1963, followed by notices under Sec-
tion 9(3) and (4) the Act.
With regard to the second group of lands, identically
similar notifications under Section 4 together with identi-
cally worded. declarationcure-direction, under section 17(4)
of the Act, were issued on 13th June, 1965. As proceedings
with regard to land comprised in this group were not fol-
lowed up by notification under section 6 of the Act. it was
conceded by Counsel, in the course of arguments on behalf of
the State in the High Court, that the proceedings had:
become invalid.
769
We arc, therefore, not concerned with lands in this.’ group
in the appeals now before us: Nevertheless, it is not
devoid of significance that the terms of the notification
under section 4(1) and the declaration-cure-directions,
under section 17(4) of the Act, in this group are also
identical with those in the first two groups. This cer-
tainly suggests that directions under section 17(4) could
have been. mechanically issued in all the groups in identi-
cal terms without due application of mind t0 the factual
requirements prescribed by law.
The third group of land was also the subject matter of
identically similar notifications under section 4 of the.
Act dated 13th June, 1964, together with identically worded
declarations cum directions under section 17(4) of the Act.
This land was notified under section 6 of the Act on 28th
September, 1964, followed by the notice under section 9;
sub-ss. (3) and (4) of the Act on 28th October, 1964.
With regard to the land= in the fourth group, a notifi-
cation under Section 4 01’ the Act took place on 13th Novem-
ber, 1963, in substantially the same terms as those in the
other three groups; but, there was no direction under sec-
tion 17(4) of the Act. Consequently, the appellant filed
his objection’ on 9th January, 1964. Later, a notification
under section 6 of the Act on 13th July, 1964, was accompa-
nied by identically worded vague declaration of urgency
under section 17(4) of the Act. This strange course of
action suggests that notification under section 17(4) was
probably made only to save the botheration of the inquiry
begun under section 5A of the Act which should and could
have been concluded quite easily before 13th July, 1964.
In Writ Petitions before the High Court, the submission
that no public purpose existed was not pressed in view of
the decision of this Court in Smt. Somavanti & Ors. v. The
State of Punjab & Ors. U’) In Shri Ramtanu Co-operative
Housing Society Ltd. & Anr. v. State Maharashtra. &
Ors.(2) acquisition of land for development of industrial
areas and residential tenements for persons to live on
industrial estates was held to be legally valid for a
genuinely public purpose. This ground, therefore, need not
detain us, although file appellants, who are owners of the
properties acquired, have formally raised it also by means
of the six appeals filed by them (Civil Appeals Nos.
161’6-1621 of 1969). In agreement with the High Court, we
hold that notification under section 4(1) of the Act were
valid in all these cases.
The real question which has been argued before us is
raised by the State of Maharashtra in its three appeals Nos.
1411 to 1413 of 1969, against the view taken by a Division
Bench of the Bombay High Court in its judgment dated 16th
June, 1967. It had held that, although notifications under
section 4( 1 ) of the Act were valid, yet, the Government of
Maharashtra had not discharged its burden of showing facts
constituting the urgency which impelled it to give declara-
tionscum-directions under section 17(4) of the Act dispens-
ing with the
(1)[1963] 2 SCR 774 (2) [1971] 1 SCR 719 at
723
770
enquiries under section 5A of the Act, Therefore, actions
taken pursuant to those declarations under section 17(4) of
the Act were held to be invalid and quashed. The result
was that parties were relegated to the position they could
take up in the absence of declarations under section 17(4)
of the Act in the cases decided by the High Court. The
correctness of this view is assailed before us.
The case of the State of Maharashtra is stated as fol-
lows in the affidavit filed by the Special Land Acquisition
officer:
"I deny, the allegation that the urgency
clause has been applied without any valid reason.
I respectfully submit that whether an urgency
exists or not for exercising the powers under
section 17(1) of the Act is a matter solely for the
determination of the State Government or the Com-
missioner. Without prejudice to this, respect-
fully submit that as mentioned in the impugned
Notifications, the 3rd Respondent formed the opin-
ion that the said lands were urgently acquired for
the public purposes mentioned therein, and, accord-
ingly, he was pleased to so direct under the provi-
sions of Section 17(4) of the Act."
The respondent No. 3 referred to in the affidavit is the
Commissioner of Bombay Division. It is significant that,
in the affidavit filed in reply to the assertions of peti-
tioners, denying the existence of such urgency as to attract
the provisions of section 17(4) of the Act. the position
primarily taken up, on behalf of the State of Maharashtra,
was that the existence of the urgency is not a justiciable
matter at all left for determination by Courts. After
that, there is a bare submission stating the alternative
case that the 3rd respondent had formed the opinion that the
said lands were urgently required for the public purpose
mentioned therein. But, no facts or particulars are stated
to which the mind of the Commissioner could have been ap-
plied in forming the opinion that the situation called for
declarations-cum-directions, under section 17(4) of the Act,
to dispense with inquiries under section 5A of the Act in
these cases. It is important to. remember that the mind of
the officer or authority concerned has really to be directed
towards formation of an opinion on the need to dispense with
the inquiry under Section 5A of the Act.
It is true that, in such cases, the formation of an
opinion is a subjective matter, as held by this Court re-
peatedly with regard to situations in which administrative
authorities have to form certain opinions before taking
actions they are empowered to take. They are expected to
know better the difference between a right or wrong opinion
than Courts could ordinarily on such matters. Neverthe-
less, that opinion has to be based upon some relevant mate-
rials in order to pass the test which Courts do impose.
That test basically is: was the authority concerned acting
within the scope of its powers or in the sphere where its
opinion and discretion must be permitted to have full play?
Once the Court comes to the conclusion that the authority
concerned was acting within the scope of its powers and had
some materiaL, however
771
meagre, on which it could reasonably base its opinion, the
Courts should not and will not interfere. There might,
however, be cases in which the power is exercised in such an
obviously arbitrary or perverse fashion, without regard to
the actual and undeniable facts, or, in other words, so
unreasonably as to leave no doubt whatsoever in the mind of
a Court that there has been an excess of power. There may
also be cases where the mind of the authority concerned has
not been applied at all, due to misunderstanding of the law
or some other reason, what was legally imperative for it to
consider.
The High Court had put its point of view in the following
words:
"When the formation of an opinion or the
satisfaction of an authority is subjective but is a
condition precedent to the exercise of a power, the
challenge ’to the formation of such opinion or to
such satisfaction is limited, in law, to three
points only. It can be challenged, firstly, on
the ground of malafides; secondly, on the ground
that the authority which formed that opinion or
which ’arrived at such satisfaction did not apply
its mind to the material on which it formed the
opinion or arrived at the satisfaction; and, third-
ly, that the material on which it formed its opin-
ion or reached the satisfaction was so insuffi-
cient that no man could reasonably reach that
conclusion. So far as the third point is con-
cerned, no Court of law can, as in an appeal,
consider that, on the material placed before the
authority, the authority was justified in reaching
its conclusion. The Court can interfere only in
such cases where there was no material at all or
the material was so insufficient that no man could
have reasonably reached that conclusion. It is not
necessary to refer to the authorities which lay
down these propositions because they have by now
been well established in numerous judgments and
they are not in dispute before us at the Bar. In
this case, however, there is no challenge on any of
these three grounds. The dispute in this case
therefore narrows down to the point as to the
burden of proof. In other words, the dispute is
whether it is the petitioner who has to bring the
material before the Court to support his contention
that no urgency existed or whether, once the peti-
tioner denied that any urgency existed, it was
incumbent upon the respondent to satisfy the Court
that there was material upon which the respondents
could reach the opinion as mentioned in section
17(4)."
On the evidence before it, the High Court
recorded its conclusions as follows:
"In the case before us the petitioner has
stated in the petition more than once that the
urgency clause had been applied without any valid
reason. The urgency clause in respect of each of
the said two notifications concerning the lands m
groups Nos. 1 and 2 is contained in the relative
section 4
772
notification itself. The public purpose stated in
the notification is ’for development and utiliza-
tion of the said lands as an industrial and resi-
dential area’. To start with, this statement
itself vague, in the sense that it is not clear
whether the development and utilization of the
lands referred to in that statement was confined
to the lands mentioned in the schedule to the
Notification or it applied to a. wider area of
which such lands formed only a part. So far as the
affidavit in reply is concerned, no facts whatever
are stated. The affidavit only states that the
authority, i.e., the Commissioner of the Bombay
Division, was satisfied t,hat the possession of the
said lands was urgently required for the purpose of
carrying out the said development. Even Mr. Setal-
vad conceded that the affidavit does not contain a
statement of facts on which the authority was
satisfied or on which it formed its opinion. It
is, therefore, quite clear that the respondents
have failed to bring on record any material what-
ever on which the respondents formed the opinion
mentioned in the two notifications. The notifica-
tions themselves show that they concern many lands
other than those failing in the said first and
third groups. It is not possible to know what was
the development for which the lands were being
acquired, much less is it possible to know what
were the circumstances which caused urgency in the
taking of possession of such lands. We have held
that the burden of proving such circumstances, at
least prima facie is on the respondents. As the
respondents have brought no relevant material on
the record, the respondents have failed to dis-
charge that burden. We must, in conclusion, hold
that the urgency provision under section 17(4) was
not validly resorted to".
It has been submitted on behalf of the State
that we need decide nothing more than a simple
question of burden of proof in the cases before us.
We do not think that a question relating to burden
of proof is always free from difficulty or is quite
so simple as it is sought to be made out here.
Indeed, ’the apparent simplicity of a question
relating to presumptions and burdens of proof,
which have to always viewed together, is often
deceptive. Over simplification of such questions
leads to erroneous statements and misapplications
of the law.
Our Evidence Act is largely a codification,
with certain variations, of the English law of
evidence, as it stood when Sir James Fits-James
Stephens drafted it. Therefore, in order to fully
grasp the significance of its provisions we have to
sometimes turn to its sources in English’ law which
attained something resembling clarity only by
stages.
In Woolmington v. Director of Public Prosecu-
tions(1), Lord Sankey pointed out that rules of
evidence contained in early English cases are quite
confusing. He observed: "It was only later that
Courts began to discuss such things as presumption
and onus". He also said that "the word onus is
used indifferently throughout the books.
(1) [1935] A.C. 462.
773
sometimes meaning the next move or step in the
process of proving and sometimes the conclusion".
In Phipson on Evidence (11th Edn.) (at page 40,
paragraph 92), we find the principles stated in a
manner which sheds considerable light on the
meanings of the relevant provisions of our Evidence
Act:
"As applied to judicial proceedings the phrase
’burden of proof’ has two distinct and frequently
confused meanings:
(1) the burden of proof as a matter of law and
pleading-the burden, as it has been called, of
establishing a case, whether by preponderance of
evidence, or beyond a reasonable doubt; and (2) the
burden of proof in the sense of adducing evi-
dence."
It is then explained:
"The burden of proof, in this sense, rests
upon the party, whether plaintiff or defendant, who
substantially asserts the affirmative of the issue.
’It is an ancient’ rule rounded on considerations
of good sense, and it should not be departed from
without strong reasons’. It is fixed at the begin-
ning of the trial by the state of the pleadings,
and it is settled as a question of law, remaining
unchanged throughout the trial exactly where the
pleadings place it, and never ’shifting in any
circumstances whatever. If, when all the evidence,
by whomsoever introduced, is in, the party who has
this burden not discharged it, the decision must be
against him".
The application of rules relating to burden of
proof in various types of cases is thus elaborat-
ed and illustrated in Phipson by reference to
decided cases (see p. 40, para 93):
"In deciding which party asserts the
affiramative, regard must of course be had to the
substance of the issue and not merely to its
grammatical form, which latter the pleader can
frequently vary at will, moreover a negative alle-
gation must not be confounded with the mere tra-
verse of an affirmative one. The true meaning of
the rule is that where a given allegation, whether
affirmative or negative, forms an essential part of
a party’s case, the proof of such allegation rests
on him; e.g. in an action against a tenant for
not repairing according to covenant, or
against a horse-dealer that a horse sold with a
warranty is unsound, proof of these allegations is
on the plaintiff, so in actions of malicious
prosecution, it is upon him to show not only that
the defendant prosecuted him unsuccessfully, but
also the absence of reasonable and probable cause:
while in actions or false imprisonment, proof of
the existence of reasonable cause is upon the
defendant, since arrest unlike prosecution, in
prima facie a tort and demands justification.
In bailment cases, the bailee must prove that the
goods were lost without his fault. Under the
Courts (Emergency Powers) Act 1939, the
burden of proving that the defendant was
unable immediately to satisfy the judgment and
that inability arose from circumstances attributa-
ble to the
774
war rested on the defendant. But it would seem
that in an election petition alleging breaches of
rules made under the Representation of the People
Act, 1949, the Court will look at the evidence as a
whole, and that even if breaches are proved by the
petitioner, the burden of showing that the elec-
tion was conducted substantially in accordance with
the. law does not rest upon the respondent. Where
a corporation does an act under’statutory powers
which do not prescribe the method, and that act
invades the rights of others, the burden is on the
corporation to show that there was no other practi-
cal way of carrying out the power which would
have that effect".
Turning now to the provisions of our own Evi-
dence Act, we find the general or stable burden of
proving a case stated in section 101 as follows:
"101. Whoever desires any Court to give
judgment as to any legal right or liability depend-
ent on the existence of facts which he asserts,
must prove that those facts exist.
When a person is bound to prove the existence
of any fact, it is said that the burden of proof
lies on that person".
The principle is stated in section 102 from the
point of view of what has been sometimes called the
burden of leading or introducing evidence which is
placed on the party initiating a proceeding. It
says:
"102. The burden of proof in a suit or pro-
ceeding lies on that person who would fail if no
evidence at all were given on either side".
In practice, this lesser burden is discharged by
merely showing that there is evidence in the case
which supports the case set up by the party which
comes to Court first, irrespective of the side
which has led that evidence. An outright dismissal
in limine of a suit or proceeding for want of
evidence is thus often avoided. But, the burden of
establishing or general burden of proof is heavier.
Sometimes, evidence coming from the side of the
respondents, in the form of either their admissions
or conduct or failure to controvert, may strengthen
or tend to support a petitioner’s or plaintiff’s
case so much that the heavier burden of proving or
establishing a case, as distinguished from the
mere duty of introducing or showing the existence
of some evidence on record stated in section 102,
is itself discharged. Sufficiency of evidence to
discharge the onus probandi is not, apart from
instances of blatant perversity in assessing evi-
dence, examined by this Court as a rule in appeals
by special leave granted under Article 136 of the
Constitution. It has been held that the question
whether an onus probandi has been discharged is one
of fact (see: AIR 1930 P.C. p. 90). It is gener-
ally so.
"Proof", which is the effect of evidence led,
is defined by the provisions of section 3 of the
Evidence Act. The effect of evidence has to be
distinguished from the duty Or burden of showing to
the Court
775
what conclusions it should reach. This duty is
called the "onus probandi", which is placed upon
one of the parties, in accordance with appropriate
provisions of law applicable to various situations,
but, the effect of the evidence led is a matter of
inference or a conclusion to be arrived at by the
Court.
The total effect of evidence is determined at
the end of a proceeding not merely by considering
the general duties imposed by sections 101 and 102
of the Evidence Act but also the special or
particular ones imposed by other provisions such as
sections 103 and 106 of the Evidence Act. Section
103 enacts: "103. The burden of proof as to
any particular fact lies on that person who wishes
the Court to believe in its existence, unless it
is provided by any law that the proof of that fact
shall lie on any particular person".
And, section 106 lays down:
"106. When any fact is especially within the
knowledge of any person, the burden of proving
that fact is upon him".
In judging whether a general or a particular or special
onus has been discharged, the Court will not only consider
the direct effect of the oral and documentary evidence led
but also what-may be indirectly inferred because. certain
facts have been proved or not proved though easily capable
of proof if they existed at all which raise either a pre-
sumption of law or of fact. Section 114 of the Evidence Act
covers a wide range of presumptions of fact which can be
used by Courts inthe course of. administration of justice to
remove lacunae in the chain of direct evidence before iL It
is, therefore, said that the function of a presumption often
is to "fill a gap" in evidence.
True presumptions, whether of law or of fact, are always
rebuttable. In other words, the party against which a
presumption may operate can and must lead evidence to show
why the presumption should not be given effect to. If, for
example, the. party which initiates a proceeding or comes
with a case to Court offers no evidence to support it, the
presumption is that such evidence does not exist. And, if
some evidence is shewn to exist on a question in issue, but
the party which has it within its power to produce it, does
not, despite notice to it to do so,. produce it, the natural
presumption is that it would, if produced, have gone
against it. Similarly, a presumption arises from failure to
discharge a special or particular onus.
The result of a trial or proceeding is determined by a
weighing of the totality of facts and circumstances and
presumptions operating in favour of one party as against
those which may tilt the, balance in favour of
another. Such weighment always takes place at the end of a
trial or proceeding which cannot, for purposes of this final
weighment, be split up into disjointed and disconnected
parts simply because the requirements of procedural
regularity and logic, embodied in procedural law, prescribe
a sequence, a stage, and a mode of proof for each party
tendering its evidence. What is weighed at the end is one
776
totality against another and not selected bits or scraps
of evidence against each other. Coming back to the cases
before us, we find that the High Court had correctly stated
the grounds on which even a subjective opinion as to the
existence of the need to take action under section 17(4) of
the Act can be challenged on certain limited grounds. But,
as soon as we speak of a challenge we have to bear in mind
the general burdens laid down by sections 101 and 102 of the
Evidence Act. It is for the petitioner to substantiate the
grounds of his challenge. This means that the petitioner
has to either lead evidence or show that some evidence has
come from the side of the respondents to indicate that his
challenge to a notification or order is made good. If he
does not succeed in discharging that duty his petition will
fail. But, is that the position in the cases before us ?
We find that, although the High Court had stated the ques-
tion before it to be one which "narrows down to the point
as to the burden of proof", yet, it had analysed the evi-
dence sufficiently before it to reach the conclusion that
the urgency provision under section 17(4) had not been
validly resorted to.
The High Court had remarked that the public purpose
itself was vaguely stated, although it could not, in its
opinion, be challenged on that ground. As we have already
indicated, the purpose was sufficiently specified to be,
prima facie, a legally valid purpose. We do not think that
the vagueness of the purpose, as stated in the notification
under section 4 (1 ), really affected the judgment of t, he
High Court so much as the absence of facts and circumstances
which could possibly indicate that this purpose had neces-
sarily to be carried out in such a way as to exclude the
application of section 5A of the Act. The High Court had
rightly referred to the absence of any statement of circum-
stances which could have resulted in such urgency that no
enquiry under section 5A of the Act could reasonably be
held.
The High Court had relied on the following passage from
Barium Chemicals Ltd. v. Company Law Board(1):
" ...... An action, not based on circumstances
suggesting an inference of the; enumerated kind will not be
valid. In other words, the enumeration of the inferences
which may be drawn from the circumstances, postulates the
absence of a general discretion to go on a fishing expedi-
tion to find evidence. No doubt the formation of opinion is
subjective but the existence of circumstances relevant to
the inference as the sine qua non for action must be demon-
strable. If the action is questioned on the ground that no
circumstances leading to an inference of the kind contem-
plated by the section exists, the action might be exposed to
interference unless the existence of the circumstances is
made out ....
Since the existence of circumstances’ is a condition funda-
mental to the making of an opinion, the existence of the
circumstances, if questioned, has to be proved at least
prima facie. It is not sufficient to assert that the
circumstances
(1) A.I.R. 1967, S.C. 295 to 309.
777
exist and give no clue to what they are because the circum-
stances must be such as lead to conclusions of certain
definiteness".
The High Court also cited the following passage from
the judgment of Spens, CJ., in King Emperor v. Sibnath
Banerjee(1), which was relied upon on behalf of the State to
contend that it was the duty of the petitioners to remove
the effect of a recital in an order showing that conditions
precedent to the exercise of a power had been fulfilled:
"It is quite a different thing to question
the accuracy of a recital contained in a duly
authenticated order, particularly where that recit-
al purports to state as a fact the carrying out of
what I regard as a condition necessary to the valid
making of that order. In the normal case, the
existence of such a recital in a duly authenticated
order will, in the absence of any evidence as to.
its inaccuracy be accepted by a Court as establish-
ing that the necessary condition was fulfilled. The
presence of the recital in the order will place a
difficult burden on the detenu to produce admissi-
ble evidence sufficient to establish even a prima
facie case that the recital is not accurate. If,
however, in any case, a detenu can produce admis-
sible evidence to that effect, in my judgment the
mere existence of the recital in the order cannot
prevent the court considering such evidence and, if
it thinks fit, coming to a conclusion that the
recital is inaccurate".
The High Court opined that the presumption of regularity,
attached to an order containing a technically correct recit-
al, did not operate in cases in which section 106 Evidence
Act was applicable as it was to the cases before us. We do
not think that we can lay down such a broad general propo-
sition. An order or notification, containing a recital,
technically correct on the face of it, raises a presumption
of fact under section 114 illustration (e) of the Evidence
Act. The well known maxim of law on which the presumption,
found is illustration (e) to section 114 of Evidence Act is:
"Omain prae sumunt ur rite esse acta" (i.e. all acts are
presumed to have been rightly and regularly done). This
presumption, however, is one of fact. It is an optional
presumption. It can be displaced by circumstances indicat-
ing that the power lodged in an authority or official has
not been exercised in accordance with the law. We think
that the original or stable onus land down by section 101
and section 102 of the Evidence Act can not be shifted by
the use of section 106 of the Evidence Act, although the
particular onus of proving facts and circumstances lying
especially within the knowledge of the official who formed
the opinion which resulted in the notification under sec-
tion 17(4) of the Act rests upon that official. The recit-
al, if it is not defective, may obviate the need to look
further. But, there may be circumstances in the case which
impel the Court to look beyond it. And, at that stage,
section 106 Evidence Act can be invoked by the party assail-
ing an order or notification. It is most unsafe in such
cases for the official or authority concerned to rest
content with non-disclosure of facts especially with
(1)[1944] E.C.R 1 at 42.
778
in his or its knowledge by relying on the sufficiency of a
recital. Such an attitude may itself,justify Further judi-
cial scrutiny.
In Sibnath Banerjee’s case (supra) also, facts which led
an authority to pass a detention order could be said to lie
especially within its knowledge. If there could be certain
facts, in Sibnath Banerjee’s ease (supra), winch Sibnath
Banerjee as well as the official making the order kneW, it
could, similarly, be urged that, in the cases before us some
facts could be known to both sides. We do not think that
the principle laid down in Sibnath Banerjee’s case (supra)
can be circumvented by merely citing section 106 of the
Evidence Act as the High Court did. We think that the total-
ity of circumstances has to be examined, including the
recitals, to determine whether and to what extent each side
had discharged its general or particular onus. It has
been repeatedly laid down that the doctrine of onus of proof
becomes unimportant when there is sufficient evidence before
the Court to enable it to reach a particular conclusion.
The principle of onus of proof’ becomes important in cases
of either paucity of evidence or in cases where evidence
given by two sides is so equivalanced that the Court is
unable to hold where the truth lay.
In the cases before us, if the total evidence, from
whichever side any of it may have come, was insufficient to
enable the petitioners to discharge their general or stable
onus, their petitions could not succeed. On the other hand,
if, in addition to the bare assertions made by the petition-
ers, that the urgency contemplated by section 17(4) did not
exist, there were other facts and circumstances, including
the failure of the State to indicate facts and’ circum-
stances which it could have easily disclosed if they exist-
ed, the petitioners could be held to have discharged their
general onus.
We think that the ,matter, is not so simple as to capa-
ble of decision on an examination of a mere recital in the
order or notification as was, urged on behalf of the State
of Maharashtra. Indeed, even if a recital in a notifica-
tion is defective or does not contain the necessary state-
ment that the required conditions have been fulfilled,
evidence can be led to show that conditions precedent to the
exercise of a power’ have been actually fulfilled. This
was clearly laid down by this Court in Swadeshi Cotton
Mill’s case (supra), where Wanchoo, J. speaking for the
Constitution Bench of this Court said:
"The difference between a case where a gener-
al order contains a recital on the face of it and
one where it does not contain such a recital is
that in the latter case the burden is thrown on the
authority making the order to satisfy the Court by
other means that the conditions precedent were
fulfilled, but in the former case the Court will
presume the regularity of the order including the
fulfilment of the conditions precedent and then it
will be for the party challenging the legality of
the order to show that the recital was not correct
and that the conditions precedent were not in fact
779
complied with by the authority: (see the observa-
tions of Spens C.J. in King Emperor v. Sibnath
Banerjee(1) which were approved by the Privy Coun-
cil in King Emperor v. Sibnath Banerjee"(2).
This Court also said there:
"Our conclusion therefore is that where
certain conditions precedent have to be satisfied
before a subordinate authority can pass an order,
(be it executive or of the character of subordi-
nate legislation), it is not necessary that the
satisfaction of those conditions must be recited in
the order itself, unless the statute requires it,
though, as we have already remarked, it is most
desirable that it should be so, for in that case
the presumption that the conditions were satisfied
would immediately’ arise and burden would be
thrown on the person challenging the fact of satis-
faction to show that what is recited: is not cor-
rect. But even where the recital is not there on
the face of the order, the order will not become
illegal ab initio and only a further burden is
thrown on the: authority passing the order to
satisfy the Court by other means that the condi-
tions precedent were complied with. In the
present case this has been done by the filing of an
affidavit before us."
It is also clear that, even a technically correct recit-
al in an order or notification stating that the conditions
precedent to the exercise of a power have been fulfilled may
not debar the Court in a given case from considering the
question whether, in fact, those conditions have been ful-
filled. And, a fortiori, the Court may consider ,red decide
whether the authority concerned has applied its mind to
really relevant facts. of a case with a view to determining
that a condition precedent to the exercise of a power has
been fulfilled. If it appears, upon an examination of the
totality of facts in the case, that the power conferred has
been exercised for an extraneous or irrelevant purpose or
that the mind has not been applied at all to the real object
or purpose of a power, so that the result is that the exer-
cise of power could only serve some other or collateral
object, the Court will interfere.
In Raja Anand Brahma Shah v. State of U.P. &
Ors.,(3) a Constitution bench of this Court held:
"It is true that the opinion of the State
Government which is a condition for the exercise of
the power under s. l 7(4) of the Act, is subjec-
tive and a Court cannot normally enquire whether
there were sufficient grounds or justification for
the opinion formed by the State Government under s.
17(4). The legal position has been explained by
the Judicial Committee in King Emperor v. Shibnath
Banerjee (72
[1944]F.C.R. 1,42. (2)[1945]F.C.R, 195,216-
17.
[1967]1 S.C.R. 373 at .381.
234SC1/76
780
I.A. 241) and by this Court in a recent
case--Jaichand Lal Sethia v. State of West Bengal &
Ors. (Criminal Appeal No. 110 of 1968-decided on
July, 1966 [1966] Suppl. S.C.R.)But even though the
power of the State Government has been formulated
under s. 17(4) of the Act in subjective terms the
expression of opinion of the State Government can
be challenged as ultra vires in a Court of Law if
it, could be shown that the State Government never
applied its mind to the. matter or that the action
of the State Government is malafide If therefore
in a case the land under acquisition is not actual-
ly waste or arable land but the State Government
has formed the opinion that the provisions of sub-
s.(1) of s. 17 are applicable the Court may legiti-
mately draw an inference that the State Government
did not honestly form that opinion or that in
forming that opinion the State Government did not
apply its mind to the relevant facts bearing on the
question at issue. It follows therefore that the
notification, of the State Government under s.
17(4) of the Act directing that the provisions of
s. 5A shall not apply to the land is ultra vires".
In Brahma Shah’s case (supra), a condition
precedent to the application of section 17(4) was
held to be unsatisfied inasmuch as the land in
respect of which the proceeding was taken was found
to be forest land which could not be classified as
"arable or waste land".
Learned counsel for the State relied strongly
on the judgment of this Court in I. G. joshi Etc.
v. State of Gujarat & Anr. (1) where this Court
had pointed out how, in Sibnath Banerjee’s case
(supra), the initial burden of the petitioner,
arising from a prima facie correct order had been
repelled by an affidavit filed by Mr. Porter,
Additional Home Secretary on behalf of the State,
showing that the mind ’of the authority concerned
had not been independently applied to the require-
ments of law but a routine order had apparently
been passed on materials supplied by the Police.
We have carefully considered the following observa-
tions made by this Court in I. G. Joshi’s case
(supra) after noticing facts of Sibnath Baner-
jee’s case (supra) (at p. 278):
"The High Court, having before it allega-
tions, counter allegations, and denials, dealt
first with the legal side of the matter. Then it
readily accepted the affidavits on the side of
Government. If it had reversed its approach it
need not have embarked upon (what was perhaps
unnecessary) an analysis of the many principles on
which onus is distributed between rival parties and
the tests on which subjective opinion as distin-
guished from an opinion as to the existence of a
fact, is held open to review in a court of law.
As stated already there is a strong presumption of
regularity of official acts and added thereto is
the
(l) [1968]2 S.C.R. 267.
781
prohibition contained in Art. 166(2). Govt. was
not called upon to answer the kind of affidavit
which was filed with the petition because bare
denial that Govt. had not formed an opinion could
not raise an issue. Even if Govt. under advice
offered to disclose how the matter was dealt with,
the issue did not change and it was only this.
Whether any one at all formed an opinion and if
he.did whether he had the necessary authority to do
so. The High Court having accepted the affidavits
that Raval and Jayaraman had formed the necessary
opinion, was only required to see if they had the
competence. The High Court after dealing with many
matters held that they had".
In I. G. Joshi’s case (supra), it appears to us that the
principal -round of attack on a notification, was that it
was not duly authenticated in accordance with the require-
ments of Article 166 and the Rules’ of Business. The
notification was held not to have been vitiated on the
grounds on which it had been assailed. It was observed
that the High Court, after considering the evidence, was
satisfied, on the evidence produced before it, that the
required opinion had been formed even though it was not
necessary for the Government in view of the presumption of
regularity attached to official acts. to produce anything
more than the notification. We do not find that any of the
matters placed before us’ now was in issue there. On the
other hand, this. Court held, on that occasion, that the
mere assertion of the petitioner that the Government had not
formed an opinion about the need for action under section
17(4) of the Act "could not raise an issue". We do not
think that we need express any opinion here on the question
whether such an assertion can or cannot even raise a triable
issue. All we need say is that a triable issue did arise
and was decided by the High Court in the cases now before
us. This issue was whether the conditions precedent to
exercise of power under section 17(4) had been fulfilled or
not. We think that such a question can only be decided
rightly after determining what was the nature of compliance
with the conditions of section 17(4) required by the Act.
We think that section 17(4) cannot be read in isolation
from sections 4(1) and 5A of the Act. The immediate purpose
of a notification under section 4(1 ) of the Act is to
enable those who may have any objections to make to lodge
them for purposes of an enquiry under section 5A of the Act.
It is true that, although only 30 days from the notification
under section 4(1) are given for the filing of these objec-
tions under section 5A of the Act, yet, sometimes the pro-
ceedings under section 5A are unduly prolonged. But,
considering the nature of the objections which are capable
of being successfully taken under section 5A, it is diffi-
cult to see why the summary enquiry should not be concluded
quite expeditiously. In View of the authorities of this
Court, the existence of what are prima facie public pur-
poses, such as the one present in the cases before us,
cannot be successfully challenged at all by objectors. It
is rare to find a case in which. objections to
782
the validity of a public purpose of an acquisition can even
be stated in a form in which the challenge could succeed.
Indeed, questions relating to validity of the notification
on the ground of malafides do not seem to US to be ordinari-
ly open in a summary enquiry under section 5A of the Act.
Hence, there seems to us to be little difficulty in
completing enquiries contemplated by section 5A of the Act
very expeditiously.
Now, the purpose of section 17(4) of the Act is, obvi-
ously, not merely to confine action under it to. waste and
arable land but ,also to situations in which an inquiry
under section 5A will serve no useful purpose, or, for some
overriding reason, it should be dispensed with. The mind of
the Officer or authority concerned has to be applied to the
question whether there is fan urgency of such a nature that
even the summary proceedings under section 5A of the Act
should be eliminated. It is not just the existence of an
urgency but the need to dispense with an inquiry under
section 5A which has to be considered.
Section 17(2) deals with a case in which an enquiry
under section 5A of ’the Act could not possibly serve any
useful purpose. Sudden change of the course of a river
would leave no option if essential communications have to be
maintained. It results in more or less indicating, by an
operation of natural physical forces beyond human control,
what land should be urgently taken possession of. Hence,
it offers no difficulty in applying section 17(4) in public
interest. And, the particulars of’. what is .obviously to be
done in public interest need not be concealed when its
validity is questioned in a Court of justice. Other cases
may raise questions involving consideration of facts which
are especially within the knowledge of the authorities
concerned. And, if they do not discharge their special
burden, imposed by section 106 Evidence Act, without even
disclosing a sufficient reason for their abstention from
disclosure, they have to take the consequences which flow
from the non-production of the best evidence which could be
produced on behalf of the State if its stand was correct.
In the case before us, the public purpose indicated is the
development of an area for industrial and residential pur-
poses. .This in itself, on the face of it, does not call
for any such action, barring exceptional circumstances, as
to make immediate possession, without holding even a summary
enquiry under section 5A of the Act, imperative. On the
other hand, such schemes generally take sufficient period
of time to enable at least summary inquiries under section
5A of the Act to be completed without any impediment whatso-
ever to the execution of the scheme. Therefore, the very
statement of the public purpose for which .the land was to
be ’acquired indicated the absence of such urgency, on the
apparent facts of the case, as to require the elimination of
an enquiry under ’section 5A of the Act.
Again, the uniform and set recital of a formula, like a
ritual or mantara, apparently applied mechanically to every
case, itself indicated that the mind of the Commissioner
concerned was only applied
783
to the question whether the land was waste or arable and
whether its acquisition is urgently needed. Nothing beyond
that seems to have been considered. The recital itself
shows that the mind of the Commissioner was not applied at
all to the question whether the urgency is of such a nature
as to require elimination of the enquiry under section 5A.of
the Act. If it was, at least the notifications gave no
inkling of it at all. On the other hand, its literal mean-
ing was that nothing beyond matters stated there were con-
sidered.
All schemes relating to development of industrial and
residential areas must be urgent in the context of the
country’s need for increased production and more residential
accommodation. Yet, the very nature of such schemes of
development does not appear to demand such emergent action
as to eliminate summary enquires under section 5A of the
Act. There is no indication whatsoever in the affidavit
filed on behalf of the State that the mind of the Commis-
sioner was applied. at all to the question whether it was a
case necessitating the elimination of the enquiry under
section 5A of the Act. The recitals in the notifications,
on the other hand, indicate that elimination of the enquiry
under section 5A of the Act was treated as an automatic
consequence of the opinion formed on other matters. The
recital does not say at all that any opinion was formed on
the need to dispense with the enquiry under section 5A of
the Act. It is certainly a case in which’ the recital was
atleast defective. The burden, therefore, rested upon the
State to remove the defect, if possible, by evidence to show
that some exceptional circumstances which necessitated the
elimination of an enquiry under section 5A of the Act and
that the mind of the Commissioner was applied to this essen-
tial question. It seems to us that the High Court correctly
applied the provisions of section ’106 of the Evidence Act
to place the burden upon the State to prove those special
circumstances. although it also; appears to us. that the
High Court was not quite correct in stating its view in such
a manner as to make it appear that some part of the initial
burden of the petitioners under sections 101 and 102 of the
Evidence Act had been displaced by the failure of the State,
to discharge its duty under’ section 106 of the Act. The
correct way of putting it would have been to say that the
failure of the State to produce the evidence of facts espe-
cially’ within the knowledge of its officials, which rested
upon it under section 106 of the Evidence Act, taken
together with the attendant facts gnu circumstances, includ-
ing the contents of recitals, had enabled the petitioners to
discharge their burdens under sections 101 and 102 of the
Evidence Act.
We may also observe that if, instead of prolonging
litigation by appealing to this Court, the State Government
had ordered expeditious enquiries under section 5A of the
Act or even afforded the petitioners some opportunity of
being heard before acting under section 17(4) of the Act,
asking them to show cause why no enquiry under section 5A of
the Act should take place at all, the acquisition proceed-
ings need not have been held up so long. In fact, we hope
that the acquisition proceedings have not actually been held
up.
784
On the view we take of the cases before us, we find no
force in either the appeals by the owners of land or in
those preferred by the State of Maharashtra. Consequently,
we dismiss all the nine appeals before us. The parties
will bear their own costs.
P.B.R. Appeals
dismissed.
785