CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1616-1621
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 certification 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 notification 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 Section 9(3) and (4) the Act.
With regard to the second group of lands, identically similar notifications under Section 4 together with identically 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 followed 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. 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 certainly suggests that directions under section 17(4) could have been. mechanically issued in all the groups in identical 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 notification under Section 4 01’ the Act took place on 13th November, 1963, in substantially the same terms as those in the other three groups; but, there was no direction under section 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 accompanied 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 declarationscum-directions under section 17(4) of the Act dispensing with the (1)[1963] 2 SCR 774 (2) [1971] 1 SCR 719 at 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 follows 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 petitioners, 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 applied 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 repeatedly 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. Nevertheless, that opinion has to be based upon some relevant materials 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 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
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.
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
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
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 presumption 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 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 question before it to be one which "narrows down to the point as to the burden of proof", yet, it had analysed the evidence 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 necessarily 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 circumstances 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 expedition 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 demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated 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 fundamental 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. exist and give no clue to what they are because the circumstances 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 recital, 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 proposition. 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 indicating 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 section 17(4) of the Act rests upon that official. The recital, 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 assailing 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. in his or its knowledge by relying on the sufficiency of a recital. Such an attitude may itself,justify Further judicial 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 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. 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 petitioners, 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’ circumstances which it could have easily disclosed if they existed, the petitioners could be held to have discharged their general onus.
We think that the ,matter, is not so simple as to capable 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 notification is defective or does not contain the necessary statement 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
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 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 ,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 exercise 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, 195,21617. [1967]1 S.C.R. 373 at .381. 234SC1/76
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.
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 requirements 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 objections under section 5A of the Act, yet, sometimes the proceedings 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 difficult 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 purposes, 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 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 ordinarily 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, obviously, 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 purposes. .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 whatsoever 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 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 meaning was that nothing beyond matters stated there were considered.
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 Commissioner 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 essential 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 especially’ 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, including 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 proceedings need not have been held up so long. In fact, we hope that the acquisition proceedings have not actually been held up.
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.