NARAYAN GOYIND GAVATE ETC v. STATE OF MAHARASHTRA

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, mala fides, no applica- tion of mind and total want of material on which the opinion is formed. There· fore, it is for the petitioner to substantiate the grounds of his challenge under ss. 101 ~d 102. That is, the, petitioner has td either lead evidence or show that some evidence has come from the other side to indicate that his challenge to a notification 01" order is made good. If he does not succeed in discharg· ing that duly his petition will fail. f776 B-Cl C In the present case, in addition to the bare assertions of the owners of the land that the particular urgency contemplated 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 El D (g) In the present case, the public purpose was sufficiently specified to be 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 tq be carried out in such a way as to exclude the application of s. SA 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 E 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 compli- ance with the conditions of s. l7 ( 4) required by the Act. [776 D-E] (i) The public purpose indicated is the development o~ an area for indus trial. and res.idential purposes. This, in itself, did not make the taking of immediate possession imperative without holding even a summary enquiry under s. SA. On the other hand, the execution of such schemes generally take suffi cient period of time to enable at least summary inquiries under s. SA of the Act to be completed without any impediment to the execution of the scheme. F (ii) 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 enquiries under s. SA. (iii) There is no indication whatsoever in the affidavit filed on behalf ofi the State that the mind of the Commissioner was applied at all to the question whether it was a case, necessitating the elimina- tion of the enquiry under s. SA. The recitals in the notification on the contrary G indicate that elimination of the enquiry under s. SA was treated as an auto matic 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. SA. [782 G; 783 C--D] The burden, therefore, rested upon the State to remove the defect, if possi ble, in recitals by evidence to show that some exceptional circumstances existed which necessitated the elimination ,of an <:,nquiry under s. SA and that the mind -0f the Commissioner was applied to this essential question. [783 El (h) The High Courn has thus correctly applied the provisions 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 H A B c D E F G H i66 SUPREME COURT REPORTS (1977] 1 S.C.R. some part of the initial burden of the petitioners under ss. 101 :rnd 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 producei 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] For the Appellant : ARGUMENTS It was urged on beha·lf of the appellant State that the High Com' was i11 error in placing the burden of proof on the State. Reliance was placed on the decision of the Supreme 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 statuory 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 evi dence or is made ma/afide. Simila.rly, in [1967] 1 S.C.R. 373 Raja Anand's 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. The original petitioners have not brought their case within the grounds mention ed in thfa case. The Barium Chemicals case and other cases cited can be easily dis tinguished on the ground that the statutory requirements for the exercise of particular power, for example under section 237 of the Companies Act are differently worded where certa.in circumstances are required to· be present. The Land Acquisition Act does not require the existence of any such circum stances. Besides, a decision of the Supreme Court has clearly indicated the scope of judicial review in [967] 1 S.C.R. 373 and the respondents have not shown why any different view should not be taken. In the absence of any such allega.tion Cases like ILR 67 Gujarat 620, AIR 1964 Punjab 477 and ILR 19711 Cuttack 21 can be easily distinguished. There specific allegations were made by the petitioners giving reasons as to why they challenged the notifications. to negative ln reply thereto the State was bound to bring the material In the present case if such allega·tions were made by the writ those charges. petitioners the State would have certainly placed all the necessary materials 10 negative those allegations. 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 regardlBJ: substance of the invalidity of the notification under section 17 ( 4). The these allegations to be acquired that out of the whole area which urgency clause has been applied only to some areas and, therefore, peti tioners prayed that a-n inference of exercise of powers in a casual and light hearted manner should be drawn. To this averment, and since such con crete allegation was made a concrete reply has been given by the State m para 6 at Record Pa.ge 55 explaining why some lands were selected for urgency clause and why some notifications were issued earlier and why other. came to be issued later. It is not open to the respondents to enlarge their attack on grounds otber than those which are stated in para. 16A. Lastly it was urged that the satisfaction under section 17 ( 4) is not sub jective satisfaction but must be an objective test because section 17 ( 4) should be deemed to be controlled by section 17 sub-sections 1 ancl 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 whicl! i~ to be formed on s. 17(4) is held to be subjective satisfaction. Thin; lly_ NARAYAN GOVIND GAVATE V. MAHARASHTRA 767 a• notification the contention does not interpret complete provisions of section 17(1), 17(2) A .and 17(4). It is submitted under section 17(1) and 17(2) on on.e hand .and the power under 17 ( 4) are two separate and independent powers which can be exercised at different stages of the Land Acquisition proceedings. Vide AIR 1970 Allaha·bad 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) iaquiry under section 5 (a). the urgency may be determined on an objective basis but the whole pur- pose of s. 17(4) is to dispense with an enquiry under section S(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 the opinion .of the" appropriate Government the provision of sub-section 1 or sub-section In other words the lands must be either waste or arable 2 are &pplicable. lands (which is, of course to be determined objectively) but so far as questior.- 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 C satisfaction . In such cases and the cases covered by 17 (2) B preceded section 6 . For the Respondents : tried to a,rgue that lack af The Appellant (the State of Maharashtra) 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 Ja.nds 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 ha5 not been applied. that the power under Section 17 ( 4) has been exercised in casual and light-hearted manner without there being any proper application of mind to the condition requi site 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 further stated at page 11 It woo argued before this Hon'ble Court that the circumstances under is not subjective satisfaction but . an objective test since Sec- 'Section 17 ( 4) tion 17 ( 4) is controlled 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 Llrgency in respect to the others. It is admitted tha,t the lands in all these cases were acquired for the same purpose inter alia for the development and utilisation of the said lands as an industrial and residential area. It Nas further argued that the burden of proof on the fads of these cases would be on the State since the reasons for urgency are only in the know ledge of the authority issuing the Notification. The cases cited by Couusel for the State have no application since in those cases the petitioners could establish that the impugned notific&tion was not bo11a fide. D E F In this case the respondent, land owners, bad . in their Writ Petitions G specific,.ny raised the quest!Qn 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 !lny material before the Court to show that the autharity 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 SA of the Act and those objpections 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 yenr. The notification under Section 17 ( 4) was made with respect to some lands and it was not made with respect to other. The St&te has not satisfactorily explained the reasons for this. From all these the notification under •facts and circumstances the respondents argue that H 768 SUPREME COURT REPORTS [1977] 1 S.C.R. A Section 17 ( 4) was not bonafide and the authority haJ not applied its mind and the High Court was right in setting aside the said notification. CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1616-1621 / ' ~ Appeals from the Judgment and Order dated 16th/19th of June 1967 of the Bombay High Court in S. C. A. Nos. 1971/64, 115, 216; 343, 345 and 579/65 and B CIVIL APPEAL NOS. 1411-1413/69 • Appeals from the Judgment and Order dated 16-6-67 of Bombay High Court in S. C. A. Nos. 1971/64, 115 and 345/65 . M. Natesan, A. K. Sen (In CA 1412/69), Naunit 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. 1616- 1621/69 and for Appellants in CAs. Nos. 1411-1413/69. The Judgment of the Court was delivered by BEG, J. There arc nine appeals before us, aftec ·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 pro visions of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). A notification dated 11th October, 1963, under Section 4 of the Act, was published in the Maharashtra Government Gazette with re gard to the first group. The public purpose recited in the notification was "development and utilisation of said land as a residential 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 l 7 of the said Act, that the provisions o~ Section 5-A of the said Act shall not apply in respect of the said land". c D E F G Thereafter, a notification was issued under section 6 of the Act on 19th December, 1963, followed by notices under Section 9(3) and (4) of the Act. With regard to the second group of lands, identically similar noti fications under Section 4 together with identically worded. declaration cum-direction, under section 17 ( 4) of the Act, were issued on 13th June, 1965. As proceedings with regard to land comprised in thi' group_ were not followed up by notification under section ti 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. H NARAYAN GOVIND GAVATE V. MAHARASHTRA (Beg, .f.) 769 We are, therefore, not concerned with lands in ti# 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 declara tion-cum-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. mechani cally issued in all the groups in identical terms without due application of mind to 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 datec\ 13th June, 1964, togcthel with identically worded declarations cum directions under This land was notified under section 6 of section 17 ( 4) of the Act. the Act in 28th September, 1964, followed by the notice under sec tion 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 of the Act took place on 13th November, 1963, in substan .. ti~lly the same terms as those in the other three groups; but, there was no di rec lion under section 17 ( 4) of the Act. appellant filed his objection pn 9th January, 1964. Later, a noti fication under section 6 of the Act on 13th July, 1964, was accom panied by identically worded vague declaration of urgency under sec tion 17 ( 4) of 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 SA of the Act which should and could have been concluded quite easily before 13th July, 1964. Consequently, the Act. 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.(1) In Shri Rmntanu Co-operative Housing Society Ltd. & Anr. v. State of Maharashtra & Ors.(') acquisition of land for development of indus trial 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 the appellants, who are owners of the properties acquired, have formally raised it also by means of the six appeals filed by (Civil Appeals Nos. 1616-1621 of 1969). In agreement with the High Court, we hold that notification under section 4( 1) of the Act were valid 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 the Bombay 1969, against the .view taken by ai Division Bench of It had held that, High Court in its judgment dated 16th June, 1967. although notifications under section 4 ( l) of the Act were valid, yet, the Government of Maharashtra had not d;scharged its burden of showing facts constituting the urgency which impelled it to give declarations cum-directions under section 17 ( 4) of the Act dispensing with (I) [1963] 2 SCR 774 (2) [1971] I SCR 719 at 723 A B c D E F G H A B c D E F G H 770 SUPREME COURT REPORTS [1977] 1 S.C.R. \ enquiries under scuion SA of the Act. Therefore, ac.:tions taken pur suant to those declarations under section l 7 ( 4) of the Act were held to be invalid. and quashed. The result was that parties were rele gated 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 oE the State of Maharashtra is stated as follows in the affidavit filed by the Special Land Acquisition officer: I respectfully "I deny, the allegation that the urgency clause has been applied without any valid reason. sufnnit that whether an urgency exists or not for exercising the powers under section 17 (1) of the Act is a matter sol~y for the determination of the State Government or the Com missioner. Without prejudice to this, respectfully submit that as mentioned in the impugned Notifications, the 3rd Respondent formed the opinion that the ~aid lands were urgently acquired for the public purposes mentioned there in, and, accordingly, he was pleased to so direct under the provisions of Section 17 ( 4) of the Act." The respondent No. 3 referred to in the affidavit is the Commissio ner of Bombay Division. It is significant that, in the affidavit filed in reply to t\le assertions of petitioners, denying the existence of such urgency as to attract the provisions of section 1 7 ( 4) of the Act, the position primarily taken up, on behalf of the State of Maharashtra, was that the existence on 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 formeq the opinion that the said lands were urgently required for the public pur pose mentioned therein. But, no facts or particulars are stated to which the mind of the Commissioner could have been applied in form ing the opinion that the situation called for declarations-cum-directions, under section 17 ( 4) of the Act, to dispense with inquiries under sec It is important to remember that tion SA of the Act in these cases. 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 in quiry under Section SA of the Act. It is true that, in such cases, the formation of an opinion is a sub jective matter, as held by this Court repeatedly with regard to situa tions in which admiuistrativ<i 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 ancl 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 NARAYAN GOVIND GAVATE V. MAHARASHTRA (Beg, J.) 771 mea~re, on which it could reasonably base. its opinion, should not and will not interfere. There nught, however, be cases m which the power is exercised in such an obvious~y arbitrary or perverse fashion, Without regard to the actual and undeniable facts, _or, m ot~er words, so unreasonably a~ to leave no doubt whatsoever m the mmd 0f a Court that there has been an excess of power. There may als@ be cases where the mind of the authority concerned has not been app- lied at all, due to misunderstanding of the law or some other reason, B to what was legally imperative for it to consider. the Cour.ts A H1e High Court had put its point of view in the following words ' limited, in law, It can be challenged, firstly, on • "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 three points only. ground of malafides; secondly, on the ground that the autho rity which formed that opinion or which arrived at such satis faction did not apply its mind to the material on which it formed the opinion or arrived at the satisfaction; and, thirdly, that the material on which it formed its opinion or reached the satisfaction was so that no man could insufficient reasonably reach that conclusion. So far as the third point is concerned, no Court of law can, as in an appeal, consider that, on the material placed before the authority, the autho rity 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 necesisary to refer to the authorities which lay down these propositions be cause 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 petitioner denied that any urgency existed, it was incumbent upon the respon dent to satisfy the Court that there was material upon which the respondents could reach the opinion as mentioned in section 1 7 ( 4) . " On the evidence before it, the High Court recorded its conclusions .as follows : "In the case before us the petitioner has stated in petition more than once that the urgency clause had been applied without any valid reason. The urgency clause in res pect of each of the said two notifications concerning the lands m groups Nos. 1 and 2 is contained in the relative section 4 c D E F G H A B c D E F G H 772 SUPREME COURT REPORTS ( 1977] 1 S.C.R. refen-ed notification itself. The public purpose stated in the notifica tion is 'for development and utilization of the said lands as an industrial and residential area'. To start with, this state ment itself vague, in the sense that it is not clear whether to in the development and utilization of the lands that statement was confined to the lands mentioned in 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 istated. The affi davit only states that the authority, i.e., the Commissioner of the Bombay Division, was satisfied that the possession JJf the said lands was urgently required for the purpose of carry ing out the isaid development. Even Mr. Setalvad conceded that the affidavit docs not contain a statement of facts •on which the authority was satisfied or on which it formed its opinion. respondents have failed to bring on record any material whatever on which the respondents formed the opinion mentioned in two notifications. The notification.s themselves show that they concern many lands other than those falling 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 respon dents have brought no relevant material on the record, the respondents have failed to discharge that burden. We mUJSt, in conclusion, hold that the urgency provision under section 17 ( 4) was not validly resorted to". It is, therefore, quite clear 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 Indeed, the apparent simplicity of a question to be made out here. relating to presumptions and burdens of proof, which have to be always viewed together, is often deceptive. Over isimplification of such questions leads to erroneous statements and misapplicatiorns 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 l(it~-James Stephens drafted it. Therefore, in order to fully grasp the s1g111ficance of itis provisions we have to sometimes turn to its sources in English Jaw which attained something resembling clarity only by stages. In Woolmington v. Director of Public Prosecutions(1), Lord Sankey pointed out that rules of evidence contained in early English cases are quite confusing. He observed : "It was only Courts began to discuss such thin~s as presumption and onus". He also said that "the word onus is used indifferently throughout the books, (I) [1935] A.C. 462. NARAYAN GOVIND GAVATE V. MAHARASHTRA (Beg, J:) 773· ( sometimes meaning the next move or step in the process of proving and sometimes the conclusion". A.. 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, whiither by preponderance of evidence, or beyond a reason sense o{ able doubt; and (2) the burden of proof in the adducing evidence." • It is then explained : 'It is an ancient rule 'The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially assertis the founded on affirmative of the issue. considerations of good sense, and it should not be departed It is fixed at the beginning of from without strong reasons'. 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 If, when all the evidence, by any circumstances whatever. whomsoever introduced, is in, the party who has this burden has 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 elaborated and illustrated in Phipson by refe rence 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 allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given alle- , gation, whether affirmative ol· negative, forms an es:scntial 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 actiorns of malicious prosecution, it is upon him to show not only that the defendant prosecuted him unsuc cessfully, 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 arrcs• ;_mlikc prosecution, in prima facie a tort and deniands In bailment cases, the bailee must prove that justification. fault. Under the Courts the goods were lost without his (Emergency Powers) Act 1939, the burden of proving that the defendant was unable immediately to satisfy the .iudgment and that inability arose from circumstances attributable to the c D E F G H A .B :c ID F G . H 774 SUPREME COURT REPORTS [1977] 1 S.C.R. war rested on the defendant. But it would seem that in an election petition alleging breaches of rules made under the Represent.ation of the People Act, 1949, the Court will look at the evidence as a whole, and that even if breaches are prov~d by the petitioner, the burden of showing that e!ectwn 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 met?od, and that act invades the rights of others, burden zs on the corporation to show that there was 110 other practical way of carrying out the power which would not have that effect". • Turning now to the provisions of our own Evidence Act, we find the general or stable burden of proving a case stated in eection 101 as follows : "101. 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. When a person is bound to prove the existence of any fact, it is said that t.he 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 evi It says : dence which is placed on the party initiating a proceeding. "102. 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". In practice, this lesser burden is discharged by merely showing there is evidence in the case which supports the case set up by narty which comes to Court first, irrespective of the side which has led that evidence. An outright dismissal in Umine of a suit or proceeding for want of evidence is thus often avoided. But, the burden of esta lishing 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 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 evidence, examined by this Court as a rule in appeals by special leave granted under Article 136 of Constitution. Tt has been held that the question whether an onus probandi has been discharged is one of fact (see: AIR 1930 P. G. p. 90). It is generally so . "Proof", which is the effect of evidence led, is defined by the pro visions 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 NARAYAN GOVIND GAVATE v. MAHARASHTRA (Beg, J.) 775 what conclusions it should reach. This duty is called the "onus pro- bandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations, b~t, the effect of' the evidence led is a matter of inference or a conclusion to be arrived at by the Court. A The total effect of evidence is determined at the end of a proceed- ing not merely by considering the -general duties imposed by sections B 101 and 102 of the Evidence Act but also the 5pecial 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, unles~ it is provided by any law that the proof of that fact shall lie on any particular person". c ' • 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 oruy 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 in the course of administration of justice to remove lacunae in the chain E of direct evidence before it. a pres11mption often is to "fill a gap" in evidence. It is, therefore, said that the function of I} True presumptions, whether of law or of fact, are always i:ebut In other words, the party against which a presumption may table. operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the party which ini tiates a proceeding or comes with a case to Court offers no evidence to snpport 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 weigh ment, be split up into dis_jointed and disconnected parts 5imply because the requirements of procedural regularity and logic, embodied in pro- cedural 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 F G II 776 SUPREME COURT REPORTS [1977] l S.C.R. A B c totality against another and not selected bito 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 bur dens 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. D E 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 suffi ciently specified to be, prima facie, a legally valid purpose. We do not think that the vagueness of the purpose, . as stated in the notifica tion under section 4 (1), really affected the judgment of the High Court so much as the absence of facts and circumstances which could poosibly indicate that this purpose had necessarily to be carried out in such a way as to exclude the application of section SA 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 SA of the Act could reasonably be held. The High Court had relied on the following passage from Barium Chemicals Ltd. v. Company Law Board(l') : \ F G H " ...... An action, not based on circumstances suggest- ing 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 evi dence. 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 funda mental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima It is not sufficient to assert that the circumstances facie. (1) A.LR. 1967, S.C. 295 to 309. ~ \ \ NARAYAN GOVIND GAVATE V. MAHARASHTRA (Beg, J.) 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 Banerjf!e('), 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 filled : "It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly wh0ere that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid mak ing Iii' 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 establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult bur- den on the detenu to produce admissible evidence sufficient to establish even a prima fade case that the recital is not accurate. If, however, in any case, a detenu can produce admissible 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". A B c D 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 pmmmption, however, is one of fact. It is an optional It can be displaced by circumstances indicating that the presumption. power lodged in an authority or official has not been exercised 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 notfiication under section 17 ( 4) of the Act rests upon that official. The recital, if it is not defective, may obviate tihe 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 notifi It is most unsafe in such cases for the official or authority cation. concerned to rest content with non-disclosure of facts especially with- E F G B (1) [1944] F.C.R. I at 42. 778 SUPREME COURT REPORTS [1977] 1 S.C.R. A in his or its knowledge by relying on the sufficiency of a recital. Such an attitude may itself justify further judicial scrutiny. 8 c D E F In Sibnath Banerjee's case (supra) also, facts which led an autho rity to pass a detention order could be said to lie e5pecially within its If there could be certain facts, in Sibnath Banerjee' s ease knowledge. (supra), which 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 circum vented by merely citing section 106 of the Evidence Act as the High Court did. We think that the totality of circumstances has to be eitamin ed, including the recitals, to determine whether and to what extent each It has been side had discharged its general or. particular onus. repeatedly laid down that the doctrine of onus of proof beccfmes un important 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 casis 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 generat 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 re- cital 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. Court in Swadeshi Cotton Mill's case (supra), where Wanchoo, J .. speaking for the Constitution Bench of this Court said : This was clearly laid down by \ "The difference between a case where a general 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 ful filled, but in the former case the Court will presume the regularity of the order including the fulfilment of the con ditions precedent; and then it will be for the party challeng ing the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact H ' \ NARAYAN GOVJND GAV.HE V. MAllARASHTRA (Beg, J.) 779 complied with by the authority : (see the observations of Spens C. J. in King Emperor v. Sibnath Banerjee(1) which were approved by the Privy Council in King Empe ror v. Sib11ath Banerjee" (2). This Court also said there : ''Our conclusion therefore is that when;j certain condi tions precedent have to be satisfied before a snbordimitc autl1ority can pass an order, (be it executive or of the character of subordinate legislation), it is not neeessary that the satisfaction of those conditions must be recited in the o.:ler itself, unless the statute requires it, though, as we have already\ remarked, it is 1 most desirable that it should be so, for in that case the presumption that the conclitions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. 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 fmiher burden is thrown on the authority passing the order to satisfy the -Court by other means that the conditions precedent were In ·the present case this has been done by complied with. the filing of an affidavit before us." It is also clearl that, even a, technically correct recital in an order m 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 ;iuthority concerned has applied its mind to really relevant facts. of a case with a view to determining that a condition If it appears. precedent to the exercise of a power has been fulfilled. 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 ap_plied 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.,(") a Consti tution 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. l7 ( 4) of the Act, is subjective and a Court cannot normally enquire whether there were sufficient grounds or .iustification for the opinion formed byr the State Government under s. 17 ( 4). The legal position has been explained by the Judi- - cial Com1~1ittec~::._~i11g Emperor v. Shibnath Banerjee (72 (I) [1944] F.C.R. I, 42. (2) [1945] F.C.R. 195, 216-17. (3) [1967]1 S.C.R. W1 ;,1 381. 18-1234SCl/7~ A B c D E G H A B c D E F G H 780 SUPREME COURT REPORTS [1977_1 1 s.c.R. I.A. 241) and by this Court in a recent case-Jaicha11d 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 chal lenged 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 actually waste or arable land but the State Government has fofmed the opinion that the provisions of sub-s. ( 1) of s. 17 are applicable the Court may legitimately draw an infirencc that the State Government did not honestly form that opin ion or that in forming that opinion the Slate 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 direct ing that the provisions of s. SA shall not apply to the land is ultra vires". f In Brahma. Shah's case (supra), a condition precedent to application of section 17 ( 4) was held to be unsatisfied inasmuch as the land in respect of which the proceeding was taken was found 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 /. G. Joshi Etc. v. State of Gujarat & Anr. (') 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 requirements of law but a routine order had apparently been passed on materials supplied by the Police. We have. carefully considered the following observations made by this Court in I. G. Joshi's cast: after noticing facts of Sibnath' Banerjee's case (supra) (at (supra) p. 278): If it had reversed Then it readily accepted "The High Court, having before it allcgatioJLs, counter allegations, and denials, dealt first with the legal side of the the affidavits on the matter. side of Government. its approach it need not have embarked upon (what was perhaps un necessary) an analysis of the many principles on which onus is distributed between rival parties and the tests on which subjective opinion as distinguished from an opinion as to the existence ofi a fact, is held open to review in a court of law. As stated already there is a strong presump tion of regularity of official acts and added thereto is the (l) [1968]2 S.C.R. 267. \ I NARAYAN GOVIND GAVATE V. MAHARASHTRA (Beg, f.) 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 ~ opinion could not raise an issue. Even if Govt. .under ru:ivice 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 neces sar~ opinion, was only required to see if they had the com petence. The High Court after dealing with many matter:o held that they had''. In /. G. Joshi's case (supra), it appears to us that the principal ground of attack on a notificatio1i was that it was not duly authenti cated in accordance with the requirements of Article 166 and the The nqtification was held not to have been Rules of Business. It was vitiated on the grounds on. which it had been assailed. ob~erved 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 Govern ment 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 thaJ: 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 tr~able 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 seetion 17 ( 4) had been fulfilled or not. We think that such a question can only be decided rightly after determin ing what was the nature of compliance with the conditions of section J 7 ( 4) required by the Act. We think that section 17(4) cannot be read in isolation from sec tions 4 ( 1) and SA of the Act. The immediate purpose of a noti fication 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 SA of the Act. It is true that, although only 30 days from the notification under section 4(1) are given for the filing of t11ese objections _under section SA of the Act, yet, sometimes the proceedings under section SA an~ unduly prolonged. But, considering the nature of the objections which are capable of being successfully taken under section SA, it is difficult to see why the summary enquiry should not be concluded quite expeditiously. In view ot the authorities of this Court, -the exist~nce of what are prima facie public purposes; such a~ the one present !fl the cases before us, cannot be successfully challenged It is rare to find a case in which objections to at all by objectors. A B c D E F G H 782 SUPREME COURT REPORTS [1977) 1 S.C.R. A B c D E 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 s.:r.'. tion SA of the Act. Hence, there seems to us to be little dit1icully in completing enquiries contemplated by section SA 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 SA will serve ne useful purpose, or, for some overriding reason, it should be dispensed with The mind of the Officer or authority concerned has to be ~plied to the question whether there is .an urgency of such a nature thaf even the summary proceedings unde11 section SA of the Act should be elimi It is not just the existence of an urgency but the need to dis nated. pense with an inquiry under section SA which has to be considered. Section 17 (2) deals with a case. in which an enquiry under section Sudd.:11 SA of the Act could not possibly serve any useful purpose. change of the course of a river woulc~ leave no option if essentia I 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, section 17 ( 4) in public interest. it offers no difficulty in applying 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 the~ 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 c~nsequences which flow from the non-production of the best evidence which could be produced on behalf of the State if its stand was correct. Jn the case before us, the public purpose indicated is the develop ment of an area for industrial and residential purposes. This, 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, impera sufficient tive. On the other hand, such schemes generally take period of time to enable at least summary inquiries under section 5 A 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 SA of the Act. G H Again, the uniform and set recital of a formula, like a ritual or 11w11tarn, apparently applied mechanically to every case, itself indi cated that the mind of the Commissioner concerned was only applied j \ \ NARAYAN GOVJND GAVATE 1'. MAHARASHTRA (Beg, J.) 783 to the question whether the land was waste or arable and whether its A acquisition is urgently needed. Nothing beyond that seems to have beeo considered.. The recital itself shows that the mind of the Com missioner was not applied at all ta: the question whether the urgency · is of such a nature as to require elimination of the enquiry under sec tion SA of the Act. If it was, at least the notifications gave po inkling of it_ at all. On the other hand, its literal meaning was that nothing beyond matters stated there were considered. B The recital does not say at D All schemes relating to development of industrial and residential areas must be urgent in the context of the country's need for incn.:;iscd productiQ11 and more residential accommodation. Yet, the very m1- ture of such schemes of development does not appear to demand such emergent action as to eliminate 1sunnnary enquires under section SA of the Ac~ There is no indication whatsoeve1; in the affidavit filed on behalf of the State that the mind of the Commissionet was applied at all to the question whether it was a case necessitating the elimination of the enquiry under section SA of the Act. The recitals in the noti- . fications, on the other hand, indicate that elimination of the enquiry under section SA of the Act was treated as an automatic consequence of the opinion .formed on other matters. all that any opinion was formed on the need to dispense with the It is certainly a case in which enqui.ry under section SA of tl1e Act. the recital was atleast defective. The burden, therefore, rested upon the State to remove t11e 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 It seems to us Commissioner was applied to this essential question. 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 tc 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 l 06 ot' the Act. The correct way of putting it would have been to say that the failure o~ 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 and circumstances, including the contents of recitals, had enabled the petitioners to discharge the.ir burdens under sections 101 and 102 or the Evidence Act. We may also observe that if, instead of prolonging litigation by appealing to this Court, tlie State Government had ordered expedi tious enquiries under section SA of the Act or even afforded the peti tioners some opportunity of being heard before acting under section l 7 ( 4) of the Act, asking them to show <.;ause why no enquiry under section 5 A of the Act should take place at all, the acquisition pro ceedings need not 1have been held up so long. In fact, we hope that the acquisition proceedings have not actually been held up. C E F G H 7114 SUPREME COURT REPORTS Jl 977] 1 S.C.R. A On the view we take of the cases befor~ 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 appeab before us. The parties will bear theiv own costs. P.B.R. Appeals dismissed. • • I \