TaxTMI 
TaxTMI 
1976 (10) TMI 146
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....e: "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 noti....
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....tion 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 16^th 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 declarations cum-directions under section 17(4) of the Act dispensing with the 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....
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.... 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 opin....
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....required for the purpose of carrying out the said development. Even Mr. Setalvad 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 whatever on which the respondents formed the opinion mentioned in the two notifications. The notifications 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 discharge 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 ....
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....ly 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 elaborated 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 allegation must not be confounded with the mere traverse 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 u....
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.... 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 evidence, 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 generally 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.....
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....al 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. Th....
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....circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances 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 ([1944] E.C.R 1 at 42), 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 recital 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 establishing that the necessary condition was fulfilled. The presence of the recital in....
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....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 insufficien....
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....hough, 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 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 further burden is thrown on the: authority passing the order to satisfy the Court by other means that the conditions 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 considered 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 appe....
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....udgment of this Court in I. G. joshi Etc. v. State of Gujarat & Anr. ([1968]2 S.C.R. 267) 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 case (supra) after noticing facts of Sibnath Banerjee's case (supra) (at p. 278): "The High Court, having before it allegations, 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 distinguishe....
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....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 und....
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....soever 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. Y....