{"id":168844,"date":"1976-10-11T00:00:00","date_gmt":"1976-10-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/narayan-govind-gavate-etc-vs-state-of-maharashtra-on-11-october-1976"},"modified":"2017-01-26T14:28:50","modified_gmt":"2017-01-26T08:58:50","slug":"narayan-govind-gavate-etc-vs-state-of-maharashtra-on-11-october-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/narayan-govind-gavate-etc-vs-state-of-maharashtra-on-11-october-1976","title":{"rendered":"Narayan Govind Gavate Etc vs State Of Maharashtra on 11 October, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Narayan Govind Gavate Etc vs State Of Maharashtra on 11 October, 1976<\/div>\n
Equivalent citations: 1977 AIR 183, \t\t 1977 SCR (1) 763<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nNARAYAN GOVIND GAVATE ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT11\/10\/1976\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nRAY, A.N. (CJ)\nSINGH, JASWANT\n\nCITATION:\n 1977 AIR  183\t\t  1977 SCR  (1) 763\n 1977 SCC  (1) 133\n CITATOR INFO :\n RF\t    1981 SC 818\t (60)\n R\t    1986 SC2025\t (5)\n D\t    1988 SC1459\t (16)\n\n\nACT:\n\t   Land\t Acquisition Act, 1894, ss. 5A, 6 and  17(4)--Burden\n\tof establishing urgency--On whom lies.\n\n\n\nHEADNOTE:\n\t Certain  lands\t were  sought to be acquired  by  the  State\n\tGovernment under the provisions of the Land Acquisition Act,\n\t1894,  the public purpose stated being the  development\t and\n\tutilisation  of\t the lands as a residential  and  industrial\n\tarea. Identical notifications under s. 4 were issued in\t all\n\tthe  cases.   In one group of lands, declarations  that\t the\n\tprovisions of s. 5A shall not apply in respect of the  lands\n\twere issued under s. 17(4).  With respect to a second group,\n\tdeclarations  under s. 17(4) were issued but were  not\tfol-\n\tlowed  up  with the s. 6-notification.\tWith  respect  to  a\n\tthird  group no notification under s. 17(4) was\t issued\t but\n\tafter  the petitioners filed objections, the s.\t 6-notifica-\n\ttion  was issued accompanied by the declaration\t of  urgency\n\tunder 8. 17(4).\n\t    The\t owners of the land sought to have  the\t proceedings\n\tquashed\t on the grounds that, (1) there was no\tpublic\tpur-\n\tpose,  and  that  (2) there was no  urgency  justifying\t the\n\tnotification under s. 17(4) and dispensing with the  enquiry\n\tunder s. 5A.\n\t    The High Court held that, (1) the notifications under s.\n\t4(1)  were valid, and that (2) the State had not  discharged\n\tits  burden of showing facts constituting the urgency  which\n\timpelled  it to issue the declarations under s.\t 17(4)\tdis-\n\tpensing with the enquiry under s. 5A, and, therefore,  those\n\tdeclarations  were invalid, and that the parties were  rele-\n\tgated  to the position they could take up in the absence  of\n\tdeclarations  under s. 17(4).  Both sides appealed  to\tthis\n\tCourt.\tIn the appeals by the State, it was contended by the\n\tappellant-State\t that the burden of proving that  there\t was\n\tno. urgency was on the owners of the. lands.\n\tDismissing all the appeals,\n\t    HELD:  (1)\tThe notifications under 8. 4(1) of  the\t Act\n\twere valid in all the cases. [769 G]\n\t    (2) (a) The rules regarding burden of proof are set\t out\n\tin  the Indian Evidence Act, 1872.  Section 101 of the\tEvi-\n\tdence Act lays down that whoever desires any Court to,\tgive\n\tjudgment as to any legal right or liability dependent on the\n\texistence  of facts which he asserts, must prove that  those\n\tfacts exist, and s. 102 provides that the burden of proof in\n\ta suit or proceeding lies on  that person who would fail  if\n\tno  evidence at all were given on either side.\tSection\t 103\n\tprovides that the burden of proof as to any particular\tfact\n\tlies on that person who wishes the 'Court to believe in\t its\n\texistence,  unless it is provided by any law that the  proof\n\tof  that fact shall lie on any particular  person.   Section\n\t106  lays down that when any fact is especially\t within\t the\n\tknowledge  of any person the burden of proving that fact  is\n\tupon  him.   Section 114 of the Evidence Act covers  a\twide\n\trange  of  presumptions\t of fact which can be  used  by\t the\n\tCourts in the course of administration of justice to  remove\n\tlacunae\t in  the chain of direct evidence  before  it.\t[774\n\tC--E; 775 C-E]\n\t    (b) The result of a trial or proceeding is determined by\n\ta  weighing  of\t the totality of  facts,  circumstances\t and\n\tpresumptions  operating\t in favour of one party\t as  against\n\tthose which may tilt the balance in favour of another.\tSuch\n\tweighment  always takes place at the end of a trial or\tpro-\n\tceeding\t which cannot, for purposes of this final  weighment\n\tbe split up into disjointed and disconnected parts.  What is\n\tweighed at the end is one totality against another and not\n\t17--1234SCI\/76\n\t764\n\tselected  bits\tor scraps of evidence  against\teach  other.\n\tSuch total effect of evidence is determined at the end of  a\n\tproceeding  not\t merely by considering\tthe  general  duties\n\timposed\t by ss. 101 and 102 but also by the special or\tpar-\n\tticular ones imposed by other provisions such as ss. 103 and\n\t106.  In judging whether a general or particular or  special\n\tonus  has been discharged the Court will not  only  consider\n\tthe 'direct effect of the oral and documentary evidence\t led\n\tbut  also  what may be indirectly inferred  because  certain\n\tfacts  have been proved or not proved though easily  capable\n\tof  proof  if they existed at all and such  proof  of  other\n\tfacts  may raise either, a presumption of law or  fact.\t The\n\tparty  against which a presumption may operate can and\tmust\n\tlead the evidence to show why the presumption should not  be\n\tgiven effect to.  If the party which initiates the  proceed-\n\ting  or\t comes with a case to Court offers  no\tevidence  in\n\tsupport\t of it. the presumption is that such  evidence\tdoes\n\tnot exist and if some evidence is shown to exist on a  ques-\n\ttion  in issue but the party which has\tit within its  power\n\tto.  produce it does not, despite notice to do\tso,  produce\n\tit,  the natural presumption is that it would, if  produced,\n\thave gone against it.  Similarly, a presumption arises\tfrom\n\tfailure\t to  discharge a special or  'particular  onus.\t The\n\tdoctrine of onus of proof becomes unimportant when there  is\n\tsufficient evidence before the Court to enable it to reach a\n\tparticular conclusion in favour of or against a party.\t The\n\tprinciple  of  onus of proof becomes important in  cases  of\n\teither\tpaucity of evidence or where evidence given  by\t two\n\tsides  is so equivalenced that the Court is unable  to\thold\n\twhere the truth lay.  The question whether an onus  probandi\n\thas been discharged is one of fact.  Sufficiency of evidence\n\tto discharge the onus probandi is not examined by this Court\n\tas a rule in appeals by special leave granted under Art. 136\n\tof  the Constitution,. but placing an onus where it did\t not\n\tlie may be. so examined in appropriate cases.\n\t[775 H; D--G; 778 C--D; 774 G]\n\t   Swadeshi  Cotton  Mills Co. Ltd. v. The State of  U.P.  &\n\tOrs.<\/a> [1962] 1 S.C.R. 422. 434 and Raja Anand Brahma Shah  v.\n\tState of U.P. & Ors. [1967] 1 S.C.R. 373 at 381 referred to.\n\t  I.  G.  Joshi\t etc. v. State of Gujarat &  anr.  [1968]  2\n\tS.C.R. 267 held inapplicable.\n\t    (c) Section 17(4) of the Land Acquisition Act has to  be\n\tread with ss. 4(1) and 5A of the Act.  The immediate purpose\n\tof  a  notification under s. 4(1) of the Act  is  to  enable\n\tthose who may have any objections to lodge them for purposes\n\tof  an enquiry under s. 5A.  Considering the nature  of\t the\n\tobjections  which  are capable of being\t successfully  taken\n\tunder  s. 5A, the enquiry should be concluded quite  expedi-\n\ttiously.  The purpose of s. 17(4) is obviously not merely to\n\tconfine action under it to waste and arable land but also to\n\tsituations  in\twhich an enquiry under s. 5A will  serve  no\n\tuseful purpose, or, for some overriding reason, it should be\n\tdispensed  with.  The mind of the officer or authority\tcon-\n\tcerned has to be applied to the question whether there is an\n\turgency\t of such a nature that even the summary\t proceedings\n\tunder s. 5A of the Act should be eliminated.  It is not just\n\tthe existence of an urgency but the need to dispense with an\n\tinquiry\t under s. 5A which has to be considered. [781  G--H;\n\t782]\n\t    (d)\t Even a technically correct recital in an  order  or\n\tnotification  stating that the conditions precedent  to\t the\n\texercise  of a power have been fulfilled may not  debar\t the\n\tCourt in a given case from considering the question whether,\n\tin  fact,  those  conditions have been\tfulfilled.   And,  a\n\tfortiori  the  Court  may consider and\tdecide\twhether\t the\n\tauthority concerned has applied its mind to really  relevant\n\tfacts of a case with a view to determining that a  condition\n\tprecedent to the exercise of a power has been fulfilled.  If\n\tit  appears upon an examination of the totality of facts  in\n\tthe case, that the power conferred has been exercised for an\n\textraneous  or irrelevant purpose or that the mind  has\t not\n\tbeen  applied  at  all to the real object on  purpose  of  a\n\tpower,\tso  that the result is that the\t exercise  of  power\n\tcould only serve some other or collateral object, the  Court\n\twill interfere. [779 E---F]\n\t    (e)\t The  High Court was wrong in the  present  case  in\n\tlaying\tdown a general proposition that the  presumption  of\n\tregularity  attaching to an order containing  a\t technically\n\tcorrect\t recital did not Operate in cases in which  s.\t106,\n\tEvidence  Act,\twas applicable.\t An  order  or\tnotification\n\tcontaining  a recital technically correct on the face of  it\n\traises a presumption of fact under s. 114, illustration\n\t765\n\t(e)  That presumption is based on the maxim omain praesumun-\n\ttur rite esse acta, that, is, all acts are presumed to\thave\n\tbeen rightly and regularly done. 'This presumption, however,\n\tis one of fact.\t It is an optional presumption which can  be\n\tdisplaced by circumstances indicating that the power  lodged\n\tin  an authority or official has not been exercised  in\t ac-\n\tcordance  with tile law.  The totality of circumstances\t has\n\tto  be examined including the recitals to determine  whether\n\tand  to what extent each side had discharged its general  or\n\tparticular onus.\n\t[777 E--F]\n\t    (f)\t The High Court had, however, correctly\t stated\t the\n\tlimited grounds on which even a subjective opinion as to the\n\texistence of the need to take action under s. 17(4)  of\t the\n\tAct can be challenged, namely, main fides, no application of\n\tmind  and  total want of material on which  the\t opinion  is\n\tformed. Therefore, it is for the petitioner to\tsubstantiate\n\tthe  grounds of his challenge under ss. 101 and\t 102.\tThat\n\tis, the. petitioner has to either lead evidence or show that\n\tsome evidence has come from the other side to indicate\tthat\n\this  challenge to a notification or order is made good.\t  If\n\the  does not succeed in discharging that duty  his  petition\n\twill fail. [776 B--C]\n\tIn  the present case, in addition to the bare assertions  of\n\tthe  owners of the land that the particular urgency  contem-\n\tplated'by s. 17(4) did not exist there were other facts\t and\n\tcircumstances  including  non-disclosure of  any  facts\t and\n\tcircumstances which could easily justify the use of s. 17(4)\n\tand  which could have been disclosed if they  existed;\tand,\n\ttherefore, the petitioners should be held to have discharged\n\ttheir  general onus under s. 101 of the Evidence  Act.\tThus\n\tthe High Court was right in quashing the notifications under\n\ts. 17(4).[778 E]\n\t    (g) In the present case, the public purpose. was  suffi-\n\tciently specified to he prima facie a legally valid purpose.\n\tThe  High Court thought it vague; but, that did\t not  really\n\taffect\tthe judgment of the High Court so much as the  total\n\tabsence\t of  facts and circumstances  which  could  possibly\n\tindicate  that this purpose. had. necessarily to be  carried\n\tout in such a way as to .exclude the application of s. 5A of\n\tthe  Act.   Therefore, a .triable issue did arise  in  these\n\tcases  and  was decided by the High Court.  This  issue\t was\n\twhether the conditions precedent to exercise of power  under\n\ts.  17(4)  had been fulfilled or not.  Such a  question\t can\n\tonly  be  decided  rightly after determining  what  was\t the\n\tnature\tof  compliance with the conditions of s.  17(4)\t re-\n\tquired by the Act. [776 D--E]\n\t    (i) The public. purpose indicated is. the development of\n\tan  area for industrial and residential purposes.  This,  in\n\titself,\t did  not make the taking  of  immediate  possession\n\timperative  without holding even a summary enquiry under  s.\n\t5A.   On  the  other hand, the execution  of  such  .schemes\n\tgenerally take sufficient period of time to enable at  least\n\tsummary\t inquiries  under s. 5A of the Act to  be  completed\n\twithout any impediment to the execution of the scheme.\t(ii)\n\tAll schemes relating to development of industrial and  resi-\n\tdential\t areas must be urgent in the context of\t the.  coun-\n\ttry's  need  for increased production and  more\t residential\n\taccommodation.\t Yet,  the very nature of such\tschemes\t  of\n\tdevelopment  does not appear to demand such emergent  action\n\tas to eliminate summary enquiries under s. 5A.\t(iii)  There\n\tis no indication whatsoever in the affidavit filed on behalf\n\tof  the State that the mind of the Commissioner was  applied\n\tat  all to the question whether it was a case  necessitating\n\tthe elimination of the enquiry under s. 5A.  The recitals in\n\tthe  notification on the contrary indicate that\t elimination\n\tof  the\t enquiry  under s. 5A was treated  as  an  automatic\n\tconsequence  of\t the opinion formed on other  matters.\t The\n\trecital\t does not say at all that any opinion was formed  on\n\tthe  need to dispense with the enquiry under s. 5A. [782  G;\n\t783 C-D]\n\t    The\t burden, therefore, rested upon the State to  remove\n\tthe  defect,  if possible, in recitals by evidence  to\tshow\n\tthat  some exceptional circumstances existed which  necessi-\n\ttated the elimination of an enquiry under s. 5A and that the\n\tmind  of  the  Commissioner was applied\t to  this  essential\n\tquestion. [783 E]\n\t    (h) The High Court has thus correctly applied the provi-\n\tsions of s. 106 of the Evidence Act to place the burden upon\n\tthe  State to prove those  special  circumstances,  although\n\tthe High Court was not quite correct in stating that\n\t766\n\tsome part of the initial burden of the petitioners under ss.\n\t101  and 102 of the Evidence Act had been displaced  by\t the\n\tfailure\t of the State to discharge its duty under s. 106  of\n\tthe  Act.  The correct way of putting it would have been  to\n\tsay that the failure of the State to produce the evidence of\n\tfacts  especially  within the knowledge\t of  its  officials,\n\twhich rested upon it under s. 106 of the Evidence Act, taken\n\ttogether  with\tother evidence and the attendant  facts\t and\n\tcircumstances,\tincluding  the\tcontents  of  recitals,\t had\n\tenabled the petitioners to discharge their burdens under ss.\n\t101  and 102 Of the Evidence Act in these particular  cases.\n\t[783 F--G]\n\tARGUMENTS\n\tFor the Appellant:\n\t    It\twas urged on behalf of the appellant State that\t the\n\tHigh  Court was in error in placing the burden of  proof  on\n\tthe  State. Reliance was placed on the decision of  the\t Su-\n\tpreme Court in [1962] 1 S.C.R. 422 (pages 432, 433 and 434).\n\tIn  particular it was urged that where a statute  prescribes\n\tsomething  as  a  condition precedent for  the\texercise  of\n\tstatutory power, and there is a recital of existence of that\n\tcondition  in the notification then it is presumed that\t the\n\tstatutory condition exists and it is for the' other side  to\n\tbring material before the Court to show that recital is\t not\n\tsupported  on any evidence or is made malafide.\t  Similarly,\n\tin  [1967] 1 S.C.R. 373 Raja Anands case the very  scope  of\n\tsection\t 17(4)\twas discussed and the State  relied  on\t the\n\tobservations  at page 381 indicating the scope\tof  judicial\n\treview\toriginal  petitioners have not\tbrought\t their\tcase\n\twithin the grounds mentioned in this case.\n\t     The Barium Chemicals case and other cases cited can  be\n\teasily\tdistinguished on the ground that the  statutory\t re-\n\tquirements for the exercise of particular power, for example\n\tunder  section\t237  of the Companies  Act  are\t differently\n\tworded\twhere  certain\tcircumstances  are  required  to  be\n\tpresent.  The  Land  Acquisition Act does  not\trequire\t the\n\texistence of any such circumstances.  Besides, a decision of\n\tthe  Supreme Court has clearly indicated the scope of  judi-\n\tcial  review in [967] 1 S.C.R. 373 and the respondents\thave\n\tnot shown why any different view should not be taken.\n\t     Cases like ILR 67 Gujarat 620, AIR 1964 Punjab 477\t and\n\tILR  1970  Cuttack 21 can be  easily  distinguished.   There\n\tspecific  allegations  were made by the\t petitioners  giving\n\treasons\t as  to why they challenged  the  notifications.  In\n\treply thereto the State was bound to bring the material\t  to\n\tnegative those charges.\t In the present case if such allega-\n\ttions were made by the writ petitioners the State would have\n\tcertainly  placed  all the necessary materials\tto  negative\n\tthose  allegations.  In the absence of any  such  allegation\n\tthe correct rule to apply was the one stated in [1962] 1 SCR\n\t422  &\t433.   Apart  from this it may be  noticed  that  by\n\tamending paragraph XVI (ARP) was introduced which made\tsome\n\teffort to make concrete allegations regarding the invalidity\n\tof  the notification under section 17(4).   The'   substance\n\tof these allegations is that out of the whole area which  is\n\tto be acquired urgency clause has been applied only to\tsome\n\tareas  and, therefore, petitioners prayed that an  inference\n\tof'  exercise of powers in a casual and lighthearted  manner\n\tshould be drawn.  To this averment, and since such  concrete\n\tallegation  was made a concrete reply has been given by\t the\n\tState in para 6 at Record Page 55 explaining why some  lands\n\twere selected for urgency clause and why some  notifications\n\twere issued earlier and why others came to be issued  later.\n\tIt  is not open to. the respondents to enlarge their  attack\n\ton grounds other than those which are stated in para. 16A.\n\t     Lastly it was urged that the satisfaction under section\n\t17(4)  is not subjective satisfaction but must be an  objec-\n\ttive  test  because  section 17(4) should be  deemed  to  be\n\tcontrolled by section 17 sub-sections 1 and 2.\tIn the first\n\tplace such a, contention was never raised in the High Court.\n\tSecondly, there are number of decisions of the Supreme Court\n\twhere  the  opinion which is to be formed on  s.   17(4)  is\n\theld to\t be  subjective\t satisfaction.\tThirdly,\n\t767\n\tthe  contention\t does not interpret complete  provisions  of\n\tsection\t 17(1),\t 17(2)\tand 17(4).  It\tis  submitted  under\n\tsection\t 17(1) and 17(2) on one' hand ,and the\tpower  under\n\t17(4)  are two separate and independent powers which can  be\n\texercised  at different stages of the Land Acquisition\tpro-\n\tceedings.  Vide AIR 1970 Allahabad 151--Hakim  singh  versus\n\tState of Uttar Pradesh, under 17(1) possession can be  taken\n\twithout there being an award under section 11 but there\t has\n\tto  be\ta  publication of a notice under  section  9(1)\t and\n\talso   a   notification\t under\t section   6   preceded\t  by\n\tan inquiry under section 5(a).\tIn such cases and the  cases\n\tcovered by 17(2) the urgency may be determined on an  objec-\n\ttive basis but the whole purpose of s. 17(4) is to  dispense\n\twith  an enquiry under section 5(a) which is to be  followed\n\tagain  by  a  notification under section 6 and\tfor  such  a\n\tpurpose\t all  that is required is that in the case  of\t any\n\tland  in the opinion\t  of the appropriate Government\t the\n\tprovision of sub-section 1 or sub section    2 are  applica-\n\tble.   In  other  words the lands must be  either  waste  of\n\tarable\tlands (which is, of course to be  determined  objec-\n\ttively)\t  but  so far as the\t    question of\t urgency  is\n\tconcerned it is the opinion that the Government has to\tform\n\tand that is not to be established by any objective test\t but\n\tits subjective\tsatisfaction.\n\tFor the Respondents:\n\t    The Appellant (the State of Maharashtra) tried to  argue\n\tthat  lack of bonafides were not argued in the Court  below.\n\tIn  the pleadings of the Respondents (the writ\tpetitioners)\n\tit  was urged at pages 10 and 11 of the record that in\tfact\n\tit  is\tsignificant that in some cases the lands  which\t are\n\tsought\tto  be acquired for the same purpose  vis-a-vis\t for\n\tdevelopment  and utilisation of the land as  industrial\t and\n\tresidential  area the urgency clause has not  been  applied.\n\tIt  was\t further stated at page\t 11  that  the\tpower  under\n\tSection 17(4) has 'been exercised in casual and light-heart-\n\ted  manner . without there being any proper  application  of\n\tmind  to  the condition requisite for the exercise  of\tthat\n\t_power.\t The said point was argued before the High Court and\n\tthe High Court dealt with the same at pages 61 to 70 of\t the\n\trecord.\n\t    It\t  was  argued  before this  Honble  Court  that\t the\n\tcircumstances  under Section 17(4) is not subjective  satis-\n\tfaction\t but an objective test since Section 17(4)  is\tcon-\n\ttrolled by Section 17(1) and (2).\n\t    It was further argued that the Government never  applied\n\tits mind nor did it place before the High Court any material\n\tto  show that there was any urgency with respect to some  of\n\tthe  lands and no urgency in respect to the others.   It  is\n\tadmitted that the lands in all these cases were acquired for\n\tthe same purpose inter alia for the development and utilisa-\n\ttion  of  the said lands as an\tindustrial  and\t residential\n\tarea.\n\t    It\twas further argued that the burden of proof  on\t the\n\tfacts of these cases would be on the State since the reasons\n\tfor  urgency  are  only in the knowledge  of  the  authority\n\tissuing the Notification.  The cases cited  by\tthe  Counsel\n\tfor  the State have no application since in those cases\t the\n\tpetitioners  could establish that the impugned\tnotification\n\twas not bona fide.\n\t    In\tthis case the respondent, land owners, had in  their\n\tWrit  Petitions\t specifically raised the question  that\t the\n\tauthority  had\tnot applied its mind and treated  it  light-\n\theartedly  'and\t the Notification was not bona\tfide..\t The\n\tState however did not place any material before the Court to\n\tshow  that the authority had applied its mind or  there\t was\n\tany clue to the urgency.\n\t    The\t respondents have 'been deprived of their  right  to\n\tprefer\tobjections  under Section 5A of the  Act  and  those\n\tobjections are to be filed within 30 days. The notifications\n\tin  this case have been made at the interval of\t months\t and\n\teven more than a year.\tThe notification under Section 17(4)\n\twas made with respect to some lands and it was not made with\n\trespect\t to  other.  The  State has not\t satisfactorily\t ex-\n\tplained\t the  reasons for this.\t From all these\t  facts\t and\n\tcircumstances the respondents argue that  the\tnotification\n\tunder\n\t768\n\tSection\t 17(4)\twas not bonafide and the authority  had\t not\n\tapplied\t its mind, and the High Court was right\t in  setting\n\taside the said notification.\n\n\n\nJUDGMENT:\n<\/pre>\n
\tCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1616-1621
\n\t69<\/span>
\n\t    Appeals  from the Judgment and Order dated 16th\/l9th  of
\n\tJun&  1967 of the Bombay High Court in S.C.A. Nos.  1971\/64,
\n\t115:, 216, 343, 345 and 579\/65 and
\n\tCIVIL APPEAL NOS. 1411-1413\/69
\n\t    Appeals  from the Judgment and Order dated\t16-6-67\t  of
\n\tthe  Bombay  High  Court in S.C.A.  Nos.  1971\/64,  115\t and
\n\t345\/65.\n<\/p>\n
\t    M.\tNatesan,  A.K. Sen (In CA 1412\/69), Nannit  Lal\t and
\n\tLalita\tKohli In CAs. 1616-1621\/69 and Respondents  in\tCAs.
\n\t1411-1413\/ 69.\n<\/p>\n
\t    M.H.  Phadke,  M.N.\t Shroff for  Respondents   In\tCAs.
\n\t16161621\/69 and for Appellants in CAs. Nos. 1411-1413\/69.
\n\tThe Judgment of the Court was delivered by
\n\t    BEG, J. There are nine appeals before us, after certifi-
\n\tcation\tof fitness of the cases for appeals to\tthis  Court,
\n\tdirected  against orders governed by the same judgment of  a
\n\tDivision Bench of the High Court of Maharashtra disposing of
\n\tWrit Petitions relating to four groups of lands, which\twere
\n\tsought\tto  be\tacquired under the provisions  of  the\tLand
\n\tAcquisition  Act,  1894\t (hereinafter referred\tto  as\t‘the
\n\tAct’).\n<\/p>\n
\t A  notification dated 11th October, 1963, under’ Section  4
\n\tof Act, was published in the Maharashtra Government  Gazette
\n\twith regard to the first group.\t The public purpose  recited
\n\tin the notification was “development and utilisation of said
\n\tland as a residential\t  and industrial area”.\t  The  noti-
\n\tfication goes on to state:\n<\/p>\n
\t\t     “AND WHEREAS the Commissioner, Bombay Division,
\n\t\t is of the opinion that the said lands were waste or
\n\t\t arable\t  lands\t  and their acquisition is  urgently
\n\t\t necessary, he is further    pleased to direct under
\n\t\t sub-section  (4) of Section 17 of the\t  said\tAct,
\n\t\t that  the provisions 01; Section 5-A of  the  said’
\n\t\t Act   shall not apply in respect of the said land”.
\n\tThereafter, a notification was issued under section 6 of the
\n\tAct  on 19th December, 1963, followed by notices under\tSec-
\n\ttion 9(3) and (4) the Act.\n<\/p>\n
\t    With  regard to the second group of\t lands,\t identically
\n\tsimilar notifications under Section 4 together with  identi-
\n\tcally worded. declarationcure-direction, under section 17(4)
\n\tof the Act, were issued on 13th June, 1965.   As proceedings
\n\twith  regard to land comprised in this group were  not\tfol-
\n\tlowed up by notification under section 6 of the Act. it\t was
\n\tconceded by Counsel, in the course of arguments on behalf of
\n\tthe  State  in\tthe High Court, that  the  proceedings\thad:
\n\tbecome invalid.\n<\/p>\n
\t769<\/span><\/p>\n
\tWe arc, therefore, not concerned  with lands in this.’ group
\n\tin  the\t appeals now before us:\t  Nevertheless,\t it  is\t not
\n\tdevoid\tof significance that the terms of  the\tnotification
\n\tunder  section\t4(1)  and  the\tdeclaration-cure-directions,
\n\tunder  section\t17(4)  of the Act, in this  group  are\talso
\n\tidentical  with those in the first two groups.\t  This\tcer-
\n\ttainly\tsuggests that directions under section\t17(4)  could
\n\thave been. mechanically issued in all the groups in  identi-
\n\tcal  terms  without due application of mind t0\tthe  factual
\n\trequirements prescribed by law.\n<\/p>\n
\t    The\t third group of land was also the subject matter  of
\n\tidentically  similar notifications under section 4  of\tthe.
\n\tAct dated 13th June, 1964, together with identically  worded
\n\tdeclarations cum directions under section 17(4) of the\tAct.
\n\tThis  land was notified under section 6 of the Act  on\t28th
\n\tSeptember,  1964,  followed by the notice under\t section  9;
\n\tsub-ss. (3) and (4) of the Act on 28th October, 1964.
\n\t    With regard to the land= in the fourth group, a  notifi-
\n\tcation under Section 4 01′ the Act took place on 13th Novem-
\n\tber,  1963, in substantially the same terms as those in\t the
\n\tother  three groups; but, there was no direction under\tsec-
\n\ttion 17(4) of the Act.\t Consequently,\tthe appellant  filed
\n\this objection’ on 9th January, 1964.   Later, a notification
\n\tunder section 6 of the Act on 13th July, 1964, was  accompa-
\n\tnied  by  identically worded vague  declaration\t of  urgency
\n\tunder  section\t17(4) of the Act.   This strange  course  of
\n\taction\tsuggests that notification under section  17(4)\t was
\n\tprobably  made only to save the botheration of\tthe  inquiry
\n\tbegun  under  section 5A of the Act which should  and  could
\n\thave been concluded quite easily before 13th July, 1964.
\n\t    In Writ Petitions before the High Court, the  submission
\n\tthat  no public purpose existed was not pressed in  view  of
\n\tthe  decision of this Court in Smt. Somavanti & Ors. v.\t The
\n\tState  of  Punjab & Ors. U’) In\t Shri  Ramtanu\tCo-operative
\n\tHousing\t Society  Ltd. & Anr.<\/a>  v.  State     Maharashtra.  &
\n\tOrs.(2)\t acquisition of land for development  of  industrial
\n\tareas  and  residential\t tenements for persons\tto  live  on
\n\tindustrial  estates  was  held to be legally  valid  for   a
\n\tgenuinely  public purpose. This ground, therefore, need\t not
\n\tdetain\tus, although file appellants, who are owners of\t the
\n\tproperties acquired,  have formally raised it also by  means
\n\tof  the\t six  appeals filed by\tthem   (Civil  Appeals\tNos.
\n\t161’6-1621 of 1969).   In agreement with the High Court,  we
\n\thold  that notification under section 4(1) of the  Act\twere
\n\tvalid in all these cases.\n<\/p>\n
\t    The\t real  question which has been argued before  us  is
\n\traised by the State of Maharashtra in its three appeals Nos.
\n\t1411  to 1413 of 1969, against the view taken by a  Division
\n\tBench  of  the Bombay High Court in its judgment dated\t16th
\n\tJune, 1967.   It had held that, although notifications under
\n\tsection 4( 1 ) of the Act were valid, yet, the Government of
\n\tMaharashtra  had not discharged its burden of showing  facts
\n\tconstituting the urgency which impelled it to give  declara-
\n\ttionscum-directions under section 17(4) of the Act  dispens-
\n\ting with  the
\n\t(1)[1963]  2 SCR 774\t\t   (2) [1971] 1 SCR  719  at
\n\t723<\/span>
\n\t770<\/span>
\n\tenquiries  under section 5A of the Act,\t Therefore,  actions
\n\ttaken pursuant to those declarations under section 17(4)  of
\n\tthe  Act were held to be invalid and quashed.\t The  result
\n\twas  that parties were relegated to the position they  could
\n\ttake  up in the absence of declarations under section  17(4)
\n\tof  the\t Act  in the cases decided by the  High\t Court.\t The
\n\tcorrectness of this view is assailed before us.
\n\t    The\t case of the State of Maharashtra is stated as\tfol-
\n\tlows in the affidavit filed by the Special Land\t Acquisition
\n\tofficer:\n<\/p>\n
\t\t       “I  deny,  the allegation  that\tthe  urgency
\n\t\t clause\t has been applied without any valid  reason.
\n\t\t I  respectfully   submit that\twhether\t an  urgency
\n\t\t exists\t  or  not for  exercising the  powers  under
\n\t\t section 17(1) of the Act is a matter solely for the
\n\t\t determination\tof the State Government or the\tCom-
\n\t\t missioner.    Without prejudice  to this,  respect-
\n\t\t fully\tsubmit\tthat as\t mentioned in  the  impugned
\n\t\t Notifications, the 3rd Respondent formed the  opin-
\n\t\t ion that the said lands were urgently acquired\t for
\n\t\t the public purposes mentioned therein, and, accord-
\n\t\t ingly, he was pleased to so direct under the provi-
\n\t\t sions of Section 17(4) of the Act.”\n<\/p>\n
\t    The respondent No. 3 referred to in the affidavit is the
\n\tCommissioner  of Bombay Division.   It is significant  that,
\n\tin  the affidavit filed in reply to the assertions of  peti-
\n\ttioners, denying the existence of such urgency as to attract
\n\tthe  provisions\t of section 17(4) of the Act.  the  position
\n\tprimarily  taken up, on behalf of the State of\tMaharashtra,
\n\twas  that the existence of the urgency is not a\t justiciable
\n\tmatter\tat  all left for determination\tby  Courts.    After
\n\tthat,  there  is a bare submission stating  the\t alternative
\n\tcase that the 3rd respondent had formed the opinion that the
\n\tsaid  lands  were urgently required for the  public  purpose
\n\tmentioned therein.  But, no facts or particulars are  stated
\n\tto  which the mind of the Commissioner could have  been\t ap-
\n\tplied  in forming the opinion that the situation called\t for
\n\tdeclarations-cum-directions, under section 17(4) of the Act,
\n\tto  dispense with inquiries under section 5A of the  Act  in
\n\tthese cases.   It is important to. remember that the mind of
\n\tthe officer or authority concerned has really to be directed
\n\ttowards formation of an opinion on the need to dispense with
\n\tthe inquiry under Section 5A of the Act.\n<\/p>\n
\t    It\tis  true that, in such cases, the  formation  of  an
\n\topinion\t is a subjective matter, as held by this  Court\t re-
\n\tpeatedly  with regard to situations in which  administrative
\n\tauthorities  have  to form certain  opinions  before  taking
\n\tactions\t they are empowered to take.   They are expected  to
\n\tknow better the difference between a right or wrong  opinion
\n\tthan  Courts could ordinarily on such  matters.\t   Neverthe-
\n\tless, that opinion has to be based upon some relevant  mate-
\n\trials  in  order to pass the test which\t Courts\t do  impose.
\n\tThat  test basically is: was the authority concerned  acting
\n\twithin\tthe scope of its powers or in the sphere  where\t its
\n\topinion and discretion must be permitted to have full  play?
\n\tOnce  the Court comes to the conclusion that  the  authority
\n\tconcerned was acting within the scope of its powers and\t had
\n\tsome materiaL, however
\n\t771<\/span>
\n\tmeagre, on which it could reasonably base its opinion,\t the
\n\tCourts\tshould\tnot and will not interfere.    There  might,
\n\thowever, be cases in which the power is exercised in such an
\n\tobviously  arbitrary or perverse fashion, without regard  to
\n\tthe  actual  and undeniable facts, or, in  other  words,  so
\n\tunreasonably as to leave no doubt whatsoever in the mind  of
\n\ta  Court that there has been an excess of power.  There\t may
\n\talso be cases where the mind of the authority concerned\t has
\n\tnot been applied at all, due to misunderstanding of the\t law
\n\tor some other reason, what was legally imperative for it  to
\n\tconsider.\n<\/p>\n
\tThe  High Court had put its point of view in  the  following
\n\twords:\n<\/p>\n
\t\t       “When  the  formation of an  opinion  or\t the
\n\t\t satisfaction of an authority is subjective but is a
\n\t\t condition precedent to the exercise of a power, the
\n\t\t challenge  ‘to the formation of such opinion or  to
\n\t\t such  satisfaction is\tlimited, in  law,  to  three
\n\t\t points\t only.\tIt can be  challenged, firstly,\t  on
\n\t\t the  ground of malafides; secondly, on\t the  ground
\n\t\t that  the  authority which formed that\t opinion  or
\n\t\t which\t‘arrived at such satisfaction did not  apply
\n\t\t its  mind to the  material on\twhich it formed\t the
\n\t\t opinion or arrived at the satisfaction; and, third-
\n\t\t ly, that the material on which it formed its  opin-
\n\t\t ion  or reached the satisfaction was  so   insuffi-
\n\t\t cient\t that  no  man\tcould reasonably reach\tthat
\n\t\t conclusion.   So  far as the third  point  is\tcon-
\n\t\t cerned,  no  Court  of law can, as  in\t an  appeal,
\n\t\t consider  that, on the material placed\t before\t the
\n\t\t authority, the authority was justified in  reaching
\n\t\t its  conclusion.  The Court can interfere  only  in
\n\t\t such  cases where there was no material at  all  or
\n\t\t the material was so insufficient that no man  could
\n\t\t have reasonably reached that conclusion.  It is not
\n\t\t necessary  to\trefer to the authorities  which\t lay
\n\t\t down  these propositions because they have  by\t now
\n\t\t been  well  established in numerous  judgments\t and
\n\t\t they  are not in dispute before us at the  Bar.  In
\n\t\t this case, however, there is no challenge on any of
\n\t\t these\tthree  grounds.\t The dispute  in  this\tcase
\n\t\t therefore  narrows  down  to the point\t as  to\t the
\n\t\t burden\t of proof.  In other words, the\t dispute  is
\n\t\t whether it is the petitioner who has to  bring\t the
\n\t\t material before the Court to support his contention
\n\t\t that no urgency existed or whether, once the  peti-
\n\t\t tioner\t  denied  that any urgency existed,  it\t was
\n\t\t incumbent upon the respondent to satisfy the  Court
\n\t\t that there was material upon which the\t respondents
\n\t\t could\treach the  opinion as  mentioned in  section
\n\t\t 17(4).”\n<\/p>\n
\t\t     On\t the  evidence\tbefore it,  the\t High  Court
\n\t\t recorded its conclusions as follows:\n<\/p>\n
\t\t       “In  the\t case before us the  petitioner\t has
\n\t\t stated\t in   the petition more than once  that\t the
\n\t\t urgency  clause  had been applied without any valid
\n\t\t reason.   The urgency clause in respect of each  of
\n\t\t the  said two notifications concerning the lands  m
\n\t\t groups\t Nos. 1 and 2 is contained in  the  relative
\n\t\t section 4
\n\t\t 772<\/span>
\n\t\t notification itself.  The public purpose stated  in
\n\t\t the  notification is ‘for development and  utiliza-
\n\t\t tion  of the said lands as an industrial and  resi-
\n\t\t dential  area’.   To  start  with,  this  statement
\n\t\t itself\t vague,\t in the sense that it is  not  clear
\n\t\t whether  the  development and\tutilization  of\t the
\n\t\t lands\treferred  to in that statement was  confined
\n\t\t to  the  lands mentioned in  the  schedule  to\t the
\n\t\t Notification  or  it applied to a.  wider  area  of
\n\t\t which such lands formed only a part.  So far as the
\n\t\t affidavit in reply is concerned, no facts  whatever
\n\t\t are  stated.\tThe affidavit only states  that\t the
\n\t\t authority,  i.e., the\tCommissioner of\t the  Bombay
\n\t\t Division, was satisfied t,hat the possession of the
\n\t\t said lands was urgently required for the purpose of
\n\t\t carrying out the said development.  Even Mr. Setal-
\n\t\t vad conceded that the affidavit does not contain  a
\n\t\t statement  of\tfacts  on which\t the  authority\t was
\n\t\t satisfied  or on which it formed its  opinion.\t  It
\n\t\t is, therefore, quite clear  that  the\t respondents
\n\t\t have failed to bring on record any material   what-
\n\t\t ever\ton which the respondents formed the  opinion
\n\t\t mentioned in  the two notifications. The  notifica-
\n\t\t tions themselves show that they concern many  lands
\n\t\t other\tthan  those failing in the  said  first\t and
\n\t\t third groups.\tIt is not possible to know what\t was
\n\t\t the  development  for which the  lands\t were  being
\n\t\t acquired,  much  less is it possible to  know\twhat
\n\t\t were the circumstances which caused urgency in\t the
\n\t\t taking of possession  of such\tlands. We have\theld
\n\t\t that  the burden of proving such circumstances,  at
\n\t\t least\tprima facie is on the respondents.   As\t the
\n\t\t respondents  have brought no relevant\tmaterial  on
\n\t\t the   record, the respondents have failed  to\tdis-
\n\t\t charge\t that burden.  We must, in conclusion,\thold
\n\t\t that the urgency provision under section 17(4)\t was
\n\t\t not validly resorted to”.\n<\/p>\n
\t\t     It\t has been submitted on behalf of  the  State
\n\t\t that  we  need decide nothing more  than  a  simple
\n\t\t question of burden of proof in the cases before us.
\n\t\t We do not think that a question  relating to burden
\n\t\t of proof is always free from difficulty or is quite
\n\t\t so  simple  as it is sought to be  made  out  here.
\n\t\t Indeed,  ‘the\tapparent simplicity  of\t a  question
\n\t\t relating  to  presumptions and\t burdens  of  proof,
\n\t\t which\thave   to always viewed together,  is  often
\n\t\t deceptive.  Over simplification of  such  questions
\n\t\t leads\tto erroneous statements and  misapplications
\n\t\t of the law.\n<\/p>\n
\t\t     Our  Evidence  Act is largely  a  codification,
\n\t\t with  certain\tvariations, of the  English  law  of
\n\t\t evidence,  as\tit stood when Sir  James  Fits-James
\n\t\t Stephens drafted it.  Therefore, in order to  fully
\n\t\t grasp the significance of its provisions we have to
\n\t\t sometimes turn to its sources in English’ law which
\n\t\t attained  something  resembling  clarity  only\t  by
\n\t\t stages.\n<\/p>\n
\t\t     In Woolmington v. Director of  Public  Prosecu-
\n\t\t tions(1),   Lord Sankey pointed out that  rules  of
\n\t\t evidence contained in early English cases are quite
\n\t\t confusing. He observed:  “It was  only\t later\tthat
\n\t\t Courts began to discuss such things as\t presumption
\n\t\t and  onus”.   He also said that “the word  onus  is
\n\t\t used indifferently throughout the books.
\n\t\t (1) [1935] A.C. 462.\n<\/p>\n
\t\t 773<\/span><\/p>\n
\t\t sometimes  meaning  the next move or  step  in\t the
\n\t\t process of proving and sometimes the conclusion”.
\n\t\t     In Phipson on Evidence (11th Edn.) (at page 40,
\n\t\t paragraph  92), we find the principles stated in  a
\n\t\t manner\t which\t sheds\tconsiderable  light  on\t the
\n\t\t meanings of the relevant provisions of our Evidence
\n\t\t Act:\n<\/p>\n
\t\t “As  applied  to judicial  proceedings\t the  phrase
\n\t\t ‘burden  of proof’ has two distinct and  frequently
\n\t\t confused meanings:\n<\/p>\n
\t\t (1)  the  burden of proof as a matter\tof  law\t and
\n\t\t pleading-the  burden,\tas it has  been\t called,  of
\n\t\t establishing  a  case, whether by preponderance  of
\n\t\t evidence, or beyond a reasonable doubt; and (2) the
\n\t\t burden\t of  proof in the  sense  of  adducing\tevi-
\n\t\t dence.”\n<\/p>\n
\t\t It is then explained:\n<\/p>\n
\t\t       “The  burden of proof, in this  sense,  rests
\n\t\t upon the party, whether plaintiff or defendant, who
\n\t\t substantially asserts the affirmative of the issue.
\n\t\t ‘It is an ancient’ rule  rounded  on considerations
\n\t\t of  good sense, and it should not be departed\tfrom
\n\t\t without strong reasons’.  It is fixed at the begin-
\n\t\t ning  of the trial by the state of  the  pleadings,
\n\t\t and  it is settled as a question of law,  remaining
\n\t\t unchanged  throughout the trial exactly  where\t the
\n\t\t pleadings  place  it, and never  ‘shifting  in\t any
\n\t\t circumstances whatever.  If, when all the evidence,
\n\t\t by whomsoever introduced, is in, the party who\t has
\n\t\t this burden not discharged it, the decision must be
\n\t\t against him”.\n<\/p>\n
\t\t     The application of rules relating to burden  of
\n\t\t proof\tin  various types of cases is thus elaborat-
\n\t\t ed  and  illustrated  in Phipson  by  reference  to
\n\t\t decided cases (see p. 40, para 93):\n<\/p>\n
\t\t\t   “In\tdeciding  which\t party\tasserts\t the
\n\t\t affiramative,\tregard must of course be had to\t the
\n\t\t substance of the issue and not\t       merely to its
\n\t\t grammatical  form,  which latter  the\tpleader\t can
\n\t\t frequently vary at will, moreover a negative  alle-
\n\t\t gation\t must not be confounded with the  mere\ttra-
\n\t\t verse of an affirmative  one.\tThe true meaning  of
\n\t\t the rule is that where a given allegation,  whether
\n\t\t affirmative or negative, forms an essential part of
\n\t\t a party’s case, the proof of such allegation  rests
\n\t\t on him;     e.g. in an action against a tenant\t for
\n\t\t not   repairing  according\t  to  covenant,\t  or
\n\t\t against  a  horse-dealer that a horse sold  with  a
\n\t\t warranty is unsound, proof of these allegations  is
\n\t\t on  the    plaintiff, so in  actions  of  malicious
\n\t\t prosecution,  it is upon him to show not only\tthat
\n\t\t the  defendant prosecuted him\tunsuccessfully,\t but
\n\t\t also the absence of reasonable and probable  cause:
\n\t\t while\tin actions or false imprisonment,  proof  of
\n\t\t the\texistence  of reasonable cause is  upon\t the
\n\t\t defendant,  since  arrest  unlike  prosecution,  in
\n\t\t prima facie a tort and demands\t      justification.
\n\t\t In bailment cases, the bailee must prove that\t the
\n\t\t goods\twere  lost without his\t fault.\t  Under\t the
\n\t\t Courts\t\t   (Emergency Powers) Act 1939,\t the
\n\t\t burden\t of  proving  that\t the  defendant\t was
\n\t\t unable immediately to satisfy the judgment\t and
\n\t\t that inability arose from circumstances  attributa-
\n\t\t ble to the
\n\t\t 774<\/span>
\n\t\t war  rested  on the defendant.\t But it\t would\tseem
\n\t\t that  in an election petition alleging breaches  of
\n\t\t rules\tmade under the Representation of the  People
\n\t\t Act, 1949, the Court will look at the evidence as a
\n\t\t whole, and that even if breaches  are proved by the
\n\t\t petitioner, the burden of  showing that  the  elec-
\n\t\t tion was conducted substantially in accordance with
\n\t\t the. law does not rest upon the respondent.   Where
\n\t\t a  corporation does an act  under’statutory  powers
\n\t\t which\tdo  not prescribe the method, and  that\t act
\n\t\t invades the rights of others,\tthe burden is on the
\n\t\t corporation to show that there was no other practi-
\n\t\t cal  way  of carrying out the power   which   would
\n\t\t have that effect”.\n<\/p>\n
\t\t     Turning  now to the provisions of our own\tEvi-
\n\t\t dence Act, we find the general or stable burden  of
\n\t\t proving a case stated in section 101 as follows:\n<\/p>\n
\t\t       “101.  Whoever  desires\tany  Court  to\tgive
\n\t\t judgment as to any legal right or liability depend-
\n\t\t ent  on  the existence of facts which\the  asserts,
\n\t\t must prove that those facts exist.\n<\/p>\n
\t\t       When a person is bound to prove the existence
\n\t\t of   any fact, it is said that the burden of  proof
\n\t\t lies on that person”.\n<\/p>\n
\t\t The  principle\t is stated in section 102  from\t the
\n\t\t point of view of what has been sometimes called the
\n\t\t burden of leading or introducing evidence which  is
\n\t\t placed\t on the party initiating a  proceeding.\t  It
\n\t\t says:\n<\/p>\n
\t\t       “102.  The burden of proof in a suit or\tpro-
\n\t\t ceeding  lies on that person who would fail  if  no
\n\t\t evidence at all were given on either side”.
\n\t\t In  practice, this lesser burden is  discharged  by
\n\t\t merely\t showing  that there is evidence in the case
\n\t\t which supports the case set  up by  the party which
\n\t\t comes\tto  Court first, irrespective  of  the\tside
\n\t\t which has led that evidence.  An outright dismissal
\n\t\t in  limine  of\t a suit or proceeding  for  want  of
\n\t\t evidence is thus often avoided.  But, the burden of
\n\t\t establishing or general burden of proof is heavier.
\n\t\t Sometimes,   evidence coming from the side  of\t the
\n\t\t respondents, in the form of either their admissions
\n\t\t or conduct or failure to controvert, may strengthen
\n\t\t or  tend to support a petitioner’s  or\t plaintiff’s
\n\t\t case so much that the\theavier burden of proving or
\n\t\t establishing  a case, as distinguished\t  from\t the
\n\t\t mere  duty of introducing or showing the  existence
\n\t\t of  some evidence on record stated in section\t102,
\n\t\t is itself  discharged.\t Sufficiency  of evidence to
\n\t\t discharge  the\t onus probandi is  not,\t apart\tfrom
\n\t\t instances  of blatant perversity in assessing\tevi-
\n\t\t dence, examined by this Court as a rule in  appeals
\n\t\t by special leave granted under Article 136 of\t the
\n\t\t Constitution.\t It has been held that the  question
\n\t\t whether an onus probandi has been discharged is one
\n\t\t of fact (see:\tAIR 1930 P.C. p. 90).  It is  gener-
\n\t\t ally so.\n<\/p>\n
\t\t     “Proof”,  which is the effect of evidence\tled,
\n\t\t is  defined by the provisions of section 3  of\t the
\n\t\t Evidence  Act.\t  The effect of evidence has  to  be
\n\t\t distinguished from the duty Or burden of showing to
\n\t\t the Court
\n\t\t 775<\/span>
\n\t\t what  conclusions  it should reach.  This  duty  is
\n\t\t called\t the “onus probandi”, which is\tplaced\tupon
\n\t\t one of the parties, in accordance with\t appropriate
\n\t\t provisions of law applicable to various situations,
\n\t\t but, the effect of the evidence led is a matter  of
\n\t\t inference  or a conclusion to be arrived at by\t the
\n\t\t Court.\n<\/p>\n
\t\t     The  total effect of evidence is determined  at
\n\t\t the  end of a proceeding not merely by\t considering
\n\t\t the general duties imposed by sections 101 and\t 102
\n\t\t of  the  Evidence  Act but  also  the\t special  or
\n\t\t particular ones imposed by other provisions such as
\n\t\t sections 103 and 106 of the Evidence Act.   Section
\n\t\t 103  enacts:\t   “103. The burden of proof  as  to
\n\t\t any particular fact lies  on that person who wishes
\n\t\t the Court to believe in its existence,\t  unless  it
\n\t\t is provided by any law that the proof of that\tfact
\n\t\t shall lie on any particular person”.\n<\/p>\n
\t\t And, section 106 lays down:\n<\/p>\n
\t\t      “106.  When any fact is especially within\t the
\n\t\t knowledge   of\t any person, the burden\t of  proving
\n\t\t that fact is upon him”.\n<\/p>\n
\t  In  judging whether a general or a particular\t or  special
\n\tonus  has been discharged, the Court will not only  consider
\n\tthe  direct effect of the oral and documentary evidence\t led
\n\tbut  also what-may be indirectly inferred  because.  certain
\n\tfacts  have been proved or not proved though easily  capable
\n\tof  proof if they existed at all which raise either  a\tpre-
\n\tsumption of law or of fact.  Section 114 of the Evidence Act
\n\tcovers\ta  wide range of presumptions of fact which  can  be
\n\tused by Courts inthe course of. administration of justice to
\n\tremove lacunae in the chain of direct evidence before iL  It
\n\tis, therefore, said that the function of a presumption often
\n\tis to “fill a gap” in evidence.\n<\/p>\n
\t    True presumptions, whether of law or of fact, are always
\n\trebuttable.   In  other\t words, the party  against  which  a
\n\tpresumption  may operate can and must lead evidence to\tshow
\n\twhy the\t presumption should not be given effect to.  If, for
\n\texample,  the. party  which initiates a proceeding or  comes
\n\twith  a case to Court offers no evidence to support it,\t the
\n\tpresumption  is that such evidence does not exist.  And,  if
\n\tsome evidence is shewn to exist on a question in issue,\t but
\n\tthe party which has it within its power to produce it,\tdoes
\n\tnot, despite notice to it to do so,. produce it, the natural
\n\tpresumption  is\t that  it  would,  if  produced,  have\tgone
\n\tagainst it.  Similarly, a presumption arises from failure to
\n\tdischarge a special or particular onus.\n<\/p>\n
\t      The result of a trial or proceeding is determined by a
\n\tweighing  of   the totality of facts and  circumstances\t and
\n\tpresumptions  operating in   favour of one party as  against
\n\tthose\twhich may tilt\tthe,  balance in\t  favour  of
\n\tanother.  Such weighment always takes place at the end of  a
\n\ttrial or proceeding which cannot, for purposes of this final
\n\tweighment,  be\tsplit up into  disjointed  and\tdisconnected
\n\tparts  simply  because\t   the\trequirements  of  procedural
\n\tregularity and logic, embodied in procedural law,  prescribe
\n\ta  sequence, a stage, and a mode of proof for\t each  party
\n\ttendering its evidence.\t What is weighed at the end is one
\n\t776<\/span>
\n\ttotality  against another and not selected bits\t or   scraps
\n\tof   evidence against each other. Coming back to  the  cases
\n\tbefore us, we find that the High Court had correctly  stated
\n\tthe  grounds  on which even a subjective opinion as  to\t the
\n\texistence of the need to take action under section 17(4)  of
\n\tthe Act can be challenged on certain limited grounds.\tBut,
\n\tas  soon as we speak of a challenge we have to bear in\tmind
\n\tthe general burdens laid down by sections 101 and 102 of the
\n\tEvidence Act.  It is for the petitioner to substantiate\t the
\n\tgrounds\t of his challenge.  This means that  the  petitioner
\n\thas  to either lead evidence or show that some evidence\t has
\n\tcome  from the side of the respondents to indicate that\t his
\n\tchallenge  to a notification or order is made good.   If  he
\n\tdoes not succeed in discharging that duty his petition\twill
\n\tfail.\tBut, is that the position in the cases before  us  ?
\n\tWe  find that, although the High Court had stated the  ques-
\n\ttion before it to be one  which\t “narrows down to the  point
\n\tas  to the burden of proof”, yet, it had analysed  the\tevi-
\n\tdence  sufficiently before it to reach the  conclusion\tthat
\n\tthe  urgency  provision\t under section 17(4)  had  not\tbeen
\n\tvalidly resorted to.\n<\/p>\n
\t    The\t High  Court had remarked that\tthe  public  purpose
\n\titself\twas  vaguely stated, although it could not,  in\t its
\n\topinion,  be challenged on that ground.\t As we have  already
\n\tindicated,  the\t purpose was sufficiently specified  to\t be,
\n\tprima facie, a legally valid purpose.  We do not think\tthat
\n\tthe vagueness of the purpose, as stated in the\tnotification
\n\tunder section 4 (1 ), really affected the judgment of t,  he
\n\tHigh Court so much as the absence of facts and circumstances
\n\twhich  could possibly indicate that this purpose had  neces-
\n\tsarily\tto  be carried out in such a way as to\texclude\t the
\n\tapplication  of\t section 5A of the Act. The High  Court\t had
\n\trightly referred to the absence of any statement of  circum-
\n\tstances which could have resulted in such urgency  that\t  no
\n\tenquiry\t under\tsection 5A of the Act  could  reasonably  be
\n\theld.\n<\/p>\n
\t    The High Court had relied on the following passage\tfrom
\n\tBarium Chemicals Ltd. v. Company Law Board<\/a>(1):\n<\/p>\n
\t      ”\t  ……   An  action, not  based  on  circumstances
\n\tsuggesting an inference of the; enumerated kind will not  be
\n\tvalid.\tIn  other words, the enumeration of  the  inferences
\n\twhich  may be drawn from the circumstances,  postulates\t the
\n\tabsence\t of a general discretion to go on a fishing  expedi-
\n\ttion to find evidence. No doubt the formation of opinion  is
\n\tsubjective  but the existence of circumstances\trelevant  to
\n\tthe inference as the sine qua non for action must be  demon-
\n\tstrable.  If the action is questioned on the ground that  no
\n\tcircumstances  leading to an inference of the  kind  contem-
\n\tplated by the section exists, the action might be exposed to
\n\tinterference  unless the existence of the  circumstances  is
\n\tmade out  ….\n<\/p>\n
\tSince the existence of circumstances’ is a condition  funda-
\n\tmental\tto  the making of an opinion, the existence  of\t the
\n\tcircumstances,\tif  questioned, has to be  proved  at  least
\n\tprima  facie.\tIt  is not sufficient  to  assert  that\t the
\n\tcircumstances
\n\t(1) A.I.R. 1967, S.C. 295 to 309.\n<\/p>\n
\t777<\/span><\/p>\n
\texist and give no clue to what they are because the  circum-
\n\tstances\t must  be such as lead to conclusions\tof   certain
\n\tdefiniteness”.\n<\/p>\n
\t    The\t High  Court also cited the following  passage\tfrom
\n\tthe  judgment  of  Spens, CJ., in King\tEmperor\t v.  Sibnath
\n\tBanerjee(1), which was relied upon on behalf of the State to
\n\tcontend\t that it was the duty of the petitioners  to  remove
\n\tthe effect of a recital in an order showing that  conditions
\n\tprecedent to the exercise of a power  had  been\t fulfilled:\n<\/p>\n
\t\t       “It  is quite a different thing\tto  question
\n\t\t the  accuracy\tof  a recital contained\t in  a\tduly
\n\t\t authenticated order, particularly where that recit-
\n\t\t al purports to state as a fact the carrying out  of
\n\t\t what I regard as a condition necessary to the valid
\n\t\t making\t of  that order.  In the  normal  case,\t the
\n\t\t existence of such a recital in a duly authenticated
\n\t\t order\twill, in the absence of any evidence as\t to.
\n\t\t its inaccuracy be accepted by a Court as establish-
\n\t\t ing that the necessary condition was fulfilled. The
\n\t\t presence  of the recital in the order will place  a
\n\t\t difficult burden on the detenu to produce  admissi-
\n\t\t ble  evidence sufficient to establish even a  prima
\n\t\t facie\tcase that the recital is not accurate.\t If,
\n\t\t however, in any case, a  detenu  can produce admis-
\n\t\t sible\tevidence to that effect, in my judgment\t the
\n\t\t mere  existence of the recital in the order  cannot
\n\t\t prevent the court considering such evidence and, if
\n\t\t it  thinks  fit,  coming to a conclusion  that\t the
\n\t\t recital is inaccurate”.\n<\/p>\n
\t  The High Court opined that the presumption of\t regularity,
\n\tattached to an order containing a technically correct recit-
\n\tal,  did not operate in cases in which section 106  Evidence
\n\tAct was applicable as it was to the cases before us.  We  do
\n\tnot think that we can lay down such  a broad general  propo-
\n\tsition.\t An order or  notification,  containing\t a  recital,
\n\ttechnically correct on the face of it, raises a\t presumption
\n\tof  fact under section 114 illustration (e) of the  Evidence
\n\tAct.  The well known maxim of law on which the\tpresumption,
\n\tfound is illustration (e) to section 114 of Evidence Act is:
\n\t“Omain\tprae  sumunt ur rite esse acta” (i.e. all  acts\t are
\n\tpresumed  to  have been rightly and regularly  done).\tThis
\n\tpresumption,  however,\tis one of fact.\t It is\tan  optional
\n\tpresumption.  It can be displaced by circumstances  indicat-
\n\ting  that the power lodged in an authority or  official\t has
\n\tnot   been  exercised  in accordance with the law. We  think
\n\tthat the original or  stable  onus land down by section\t 101
\n\tand  section 102 of the Evidence Act can not be\t shifted  by
\n\tthe  use  of section 106 of the Evidence Act,  although\t the
\n\tparticular  onus  of proving facts and\tcircumstances  lying
\n\tespecially  within the knowledge of the official who  formed
\n\tthe  opinion  which resulted in the notification under\tsec-
\n\ttion 17(4) of the Act rests upon that official.\t The  recit-
\n\tal,  if\t it is not defective, may obviate the need  to\tlook
\n\tfurther.  But, there may be circumstances in the case  which
\n\timpel  the  Court to look beyond it.  And,  at\tthat  stage,
\n\tsection 106 Evidence Act can be invoked by the party assail-
\n\ting  an\t order or notification.\t It is most unsafe  in\tsuch
\n\tcases  for  the\t official or  authority\t concerned  to\trest
\n\tcontent with non-disclosure of facts especially with
\n\t(1)[1944] E.C.R 1 at 42.\n<\/p>\n
\t778<\/span><\/p>\n
\tin  his or its knowledge by relying on the sufficiency of  a
\n\trecital.  Such an attitude may itself,justify Further  judi-
\n\tcial scrutiny.\n<\/p>\n
\t    In Sibnath Banerjee’s case (supra) also, facts which led
\n\tan authority to pass a detention order could be said to\t lie
\n\tespecially within its knowledge.  If there could be  certain
\n\tfacts,\tin  Sibnath Banerjee’s ease (supra),  winch  Sibnath
\n\tBanerjee  as well as the official making the order kneW,  it
\n\tcould, similarly, be urged that, in the cases before us some
\n\tfacts  could be known to both sides.  We do not\t think\tthat
\n\tthe  principle laid down in Sibnath Banerjee’s case  (supra)
\n\tcan  be\t circumvented by merely citing section\t106  of\t the
\n\tEvidence Act as the High Court did. We think that the total-
\n\tity  of\t circumstances\thas to be  examined,  including\t the
\n\trecitals, to determine whether and to what extent each\tside
\n\thad  discharged\t its general or particular  onus.   It\t has
\n\tbeen repeatedly laid down that the doctrine of onus of proof
\n\tbecomes unimportant when there is sufficient evidence before
\n\tthe  Court  to enable it to reach a  particular\t conclusion.
\n\tThe principle of onus  of proof’ becomes important in  cases
\n\tof  either  paucity of evidence or in cases  where  evidence
\n\tgiven  by  two sides is so equivalanced that the   Court  is
\n\tunable to hold where the truth lay.\n<\/p>\n
\t    In\tthe  cases before us, if the  total  evidence,\tfrom
\n\twhichever side any of it may have come, was insufficient  to
\n\tenable the petitioners to discharge their general or  stable
\n\tonus, their petitions could not succeed. On the other  hand,
\n\tif, in addition to the bare assertions made by the petition-
\n\ters, that the urgency contemplated by section 17(4) did\t not
\n\texist,\tthere were other facts and circumstances,  including
\n\tthe  failure  of the State to indicate\tfacts  and’  circum-
\n\tstances which it could have easily disclosed if they  exist-
\n\ted,  the petitioners could be held to have discharged  their
\n\tgeneral onus.\n<\/p>\n
\t    We think that the ,matter, is not so simple as to  capa-
\n\tble  of decision on an examination of a mere recital in\t the
\n\torder  or notification as was, urged on behalf of the  State
\n\tof  Maharashtra.   Indeed, even if a recital in a  notifica-
\n\ttion  is defective or does not contain the necessary  state-
\n\tment  that  the\t required conditions  have  been  fulfilled,
\n\tevidence can be led to show that conditions precedent to the
\n\texercise  of a power’ have been actually  fulfilled.\tThis
\n\twas  clearly  laid down by  this Court\tin  Swadeshi  Cotton
\n\tMill’s\tcase  (supra), where Wanchoo, J.  speaking  for\t the
\n\tConstitution Bench of this Court said:\n<\/p>\n
\t\t       “The difference between a case where a gener-
\n\t\t al  order contains a recital on the face of it\t and
\n\t\t one  where  it does not contain such a\t recital  is
\n\t\t that in the latter case the burden is thrown on the
\n\t\t authority making the order to satisfy the Court  by
\n\t\t other\tmeans  that the\t conditions  precedent\twere
\n\t\t fulfilled,  but in the former case the\t Court\twill
\n\t\t presume  the regularity of the order including\t the
\n\t\t fulfilment of the conditions precedent and then  it
\n\t\t will  be for the party challenging the legality  of
\n\t\t the order to show that the recital was not  correct
\n\t\t and that the conditions precedent were not in fact
\n\t\t 779<\/span>
\n\t\t complied  with by the authority: (see the  observa-
\n\t\t tions\tof Spens C.J. in  King Emperor\tv.   Sibnath
\n\t\t Banerjee(1) which were approved by the Privy  Coun-
\n\t\t cil in King Emperor v. Sibnath Banerjee”(2).
\n\t\t This Court also said there:\n<\/p>\n
\t\t       “Our  conclusion\t therefore  is\tthat   where
\n\t\t certain  conditions precedent have to be  satisfied
\n\t\t before\t a subordinate authority can pass an  order,
\n\t\t (be it\t executive  or of the character of  subordi-
\n\t\t nate  legislation),  it is not necessary  that\t the
\n\t\t satisfaction of those conditions must be recited in
\n\t\t the  order itself, unless the statute requires\t it,
\n\t\t though,  as we have already  remarked, it  is\tmost
\n\t\t desirable  that it should be so, for in  that\tcase
\n\t\t the presumption that the conditions were  satisfied
\n\t\t would\t immediately’  arise  and  burden  would  be
\n\t\t thrown on the person challenging the fact of satis-
\n\t\t faction  to show that what is recited: is not\tcor-
\n\t\t rect.\t But even where the recital is not there  on
\n\t\t the  face of the order, the order will\t not  become
\n\t\t illegal  ab  initio and only a\t further  burden  is
\n\t\t thrown\t on  the:  authority passing  the  order  to
\n\t\t satisfy  the Court by other means that\t the  condi-
\n\t\t tions\tprecedent  were\t complied  with.    In\t the
\n\t\t present case this has been done by the filing of an
\n\t\t affidavit before us.”\n<\/p>\n
\t    It is also clear that, even a technically correct recit-
\n\tal  in an order or notification stating that the  conditions
\n\tprecedent to the exercise of a power have been fulfilled may
\n\tnot  debar  the Court in a given case from  considering\t the
\n\tquestion  whether, in fact, those conditions have been\tful-
\n\tfilled.\t And, a fortiori, the Court may consider ,red decide
\n\twhether\t the  authority concerned has applied  its  mind  to
\n\treally relevant facts. of a case with a view to\t determining
\n\tthat  a condition precedent to the exercise of a  power\t has
\n\tbeen  fulfilled.  If it appears, upon an examination of\t the
\n\ttotality of facts in the case, that the power conferred\t has
\n\tbeen  exercised for an extraneous or irrelevant\t purpose  or
\n\tthat the mind has not been applied at all to the real object
\n\tor purpose of a power, so that the result is that the  exer-
\n\tcise  of  power could only serve some  other  or  collateral
\n\tobject, the Court will interfere.\n<\/p>\n
\t\t     In\t Raja Anand Brahma Shah v. State of  U.P.  &
\n\t\t Ors.,(3) a Constitution bench of this Court held:\n<\/p>\n
\t\t       “It  is true that the opinion of\t the   State
\n\t\t Government which is a condition for the exercise of
\n\t\t the  power under  s. l 7(4) of the Act, is  subjec-
\n\t\t tive  and a Court cannot normally  enquire  whether
\n\t\t there were sufficient grounds or justification\t for
\n\t\t the opinion formed by the State Government under s.
\n\t\t 17(4).\t  The legal position has been  explained  by
\n\t\t the Judicial Committee in King Emperor v.  Shibnath
\n\t\t Banerjee (72
\n\t[1944]F.C.R. 1,42.\t\t   (2)[1945]F.C.R,  195,216-\n<\/p>\n
\t17.
\n\t[1967]1 S.C.R. 373 at .381.\n<\/p>\n
\t234SC1\/76
\n\t780<\/span>
\n\t\t I.A.\t241)   and  by\tthis  Court  in\t  a   recent
\n\t\t case–Jaichand Lal Sethia v. State of West Bengal &
\n\t\t Ors.  (Criminal Appeal No.<\/a> 110 of  1968-decided  on
\n\t\t July, 1966 [1966] Suppl. S.C.R.)But even though the
\n\t\t power\tof the State Government has been  formulated
\n\t\t under\ts. 17(4) of the Act in subjective terms\t the
\n\t\t expression  of opinion of the State Government\t can
\n\t\t be  challenged as ultra vires in a Court of Law  if
\n\t\t it, could be shown that the State Government  never
\n\t\t applied its  mind to the. matter or that the action
\n\t\t of  the State Government is malafide  If  therefore
\n\t\t in a case the land under acquisition is not actual-
\n\t\t ly  waste or arable land but the  State  Government
\n\t\t has formed the opinion that the provisions of\tsub-
\n\t\t s.(1) of s. 17 are applicable the Court may legiti-
\n\t\t mately draw  an inference that the State Government
\n\t\t did  not  honestly  form that opinion\tor  that  in
\n\t\t forming  that opinion the State Government did\t not
\n\t\t apply its mind to the relevant facts bearing on the
\n\t\t question at issue.   It follows therefore that\t the
\n\t\t notification,\tof  the State  Government  under  s.
\n\t\t 17(4)\tof the Act directing that the provisions  of
\n\t\t s. 5A shall not apply to the land is ultra vires”.
\n\t\t     In\t Brahma\t Shah’s case  (supra),\ta  condition
\n\t\t precedent to  the application of section 17(4)\t was
\n\t\t held  to  be unsatisfied inasmuch as  the  land  in
\n\t\t respect of which the proceeding was taken was found
\n\t\t to be forest land which could not be classified  as
\n\t\t “arable or waste land”.\n<\/p>\n
\t\t     Learned  counsel for the State relied  strongly
\n\t\t on  the judgment of this Court in I. G. joshi\tEtc.
\n\t\t v.  State of Gujarat & Anr. (1)  where\t this  Court
\n\t\t had  pointed  out how, in Sibnath  Banerjee’s\tcase
\n\t\t (supra),  the\tinitial burden\tof  the\t petitioner,
\n\t\t arising  from a prima facie correct order had\tbeen
\n\t\t repelled  by  an  affidavit filed  by\tMr.  Porter,
\n\t\t Additional  Home Secretary on behalf of the  State,
\n\t\t showing  that the mind ‘of the authority  concerned
\n\t\t had not been independently applied to the  require-
\n\t\t ments\tof  law but a routine order  had  apparently
\n\t\t been  passed on materials supplied by\tthe  Police.
\n\t\t We have carefully considered the following observa-
\n\t\t tions\tmade  by this Court in I.  G.  Joshi’s\tcase
\n\t\t (supra)   after  noticing facts of  Sibnath  Baner-
\n\t\t jee’s case (supra) (at p. 278):\n<\/p>\n
\t\t       “The  High  Court, having before\t it  allega-
\n\t\t tions,\t counter  allegations,\tand  denials,  dealt
\n\t\t first with the legal side of the matter.   Then  it
\n\t\t readily  accepted   the affidavits on the  side  of
\n\t\t Government.   If it had reversed  its\tapproach  it
\n\t\t need  not  have  embarked upon\t (what\twas  perhaps
\n\t\t unnecessary) an analysis of the many principles  on
\n\t\t which onus is distributed between rival parties and
\n\t\t the  tests on which subjective opinion\t as  distin-
\n\t\t guished  from an opinion as to the existence  of  a
\n\t\t fact,\tis held\t open to review in a court  of\tlaw.
\n\t\t As stated already there is a strong presumption  of
\n\t\t regularity  of official acts and added\t thereto  is
\n\t\t the\n<\/p>\n
\t\t (l) [1968]2 S.C.R. 267.\n<\/p>\n
\t\t 781<\/span><\/p>\n
\t\t prohibition  contained in Art. 166(2).\t  Govt.\t was
\n\t\t not  called  upon to answer the kind  of  affidavit
\n\t\t which\twas  filed with the  petition  because\tbare
\n\t\t denial\t that Govt. had not formed an opinion  could
\n\t\t not  raise  an issue. Even if\tGovt.  under  advice
\n\t\t offered to disclose how the matter was dealt  with,
\n\t\t the  issue  did not change and it  was\t only  this.
\n\t\t Whether  any  one at all formed an opinion  and  if
\n\t\t he.did whether he had the necessary authority to do
\n\t\t so.  The High Court having accepted the  affidavits
\n\t\t that  Raval and Jayaraman had formed the  necessary
\n\t\t opinion,  was only required to see if they had\t the
\n\t\t competence.  The High Court after dealing with many
\n\t\t matters held that they had”.\n<\/p>\n
\tIn  I.\tG. Joshi’s case (supra), it appears to us  that\t the
\n\tprincipal  -round of attack on a notification, was  that  it
\n\twas  not duly authenticated in accordance with the  require-
\n\tments  of  Article  166 and the Rules’\tof  Business.\t The
\n\tnotification  was  held\t not to have been  vitiated  on\t the
\n\tgrounds\t on which it had been assailed.\t  It   was  observed
\n\tthat  the  High Court, after considering the  evidence,\t was
\n\tsatisfied,  on\tthe evidence produced before  it,  that\t the
\n\trequired  opinion  had been formed even though\tit  was\t not
\n\tnecessary  for the Government in view of the presumption  of
\n\tregularity  attached to\t official acts. to produce  anything
\n\tmore than the notification.   We do not find that any of the
\n\tmatters\t placed\t before us’ now was in issue there.  On\t the
\n\tother  hand,  this. Court held, on that occasion,  that\t the
\n\tmere assertion of the petitioner that the Government had not
\n\tformed\tan opinion about the need for action  under  section
\n\t17(4)  of  the Act “could not raise an issue”.\t We  do\t not
\n\tthink that we need express any opinion here on the  question
\n\twhether such an assertion can or cannot even raise a triable
\n\tissue.\t All we need say is that a triable issue  did  arise
\n\tand  was decided by the High Court in the cases\t now  before
\n\tus.    This issue was whether  the conditions  precedent  to
\n\texercise of power under section 17(4) had been fulfilled  or
\n\tnot.   We  think that such a question can  only\t be  decided
\n\trightly after determining what was the nature of  compliance
\n\twith the conditions of section 17(4) required by the Act.
\n\t    We think that section 17(4) cannot be read in  isolation
\n\tfrom sections 4(1) and 5A of the Act.  The immediate purpose
\n\tof  a  notification  under section 4(1 ) of the\t Act  is  to
\n\tenable\tthose who may have any objections to make  to  lodge
\n\tthem for purposes of an enquiry under section 5A of the Act.
\n\tIt is true that, although only 30 days from the notification
\n\tunder section 4(1) are given for the filing of these  objec-
\n\ttions  under section 5A of the Act, yet, sometimes the\tpro-
\n\tceedings  under\t section  5A are  unduly  prolonged.\tBut,
\n\tconsidering  the nature of the objections which are  capable
\n\tof  being successfully taken under section 5A, it is  diffi-
\n\tcult to see why the summary enquiry should not be  concluded
\n\tquite  expeditiously.\tIn View of the authorities  of\tthis
\n\tCourt,\tthe  existence of what are prima facie\tpublic\tpur-
\n\tposes,\tsuch  as  the one present in the  cases\t before\t us,
\n\tcannot be successfully challenged at all by objectors.\t  It
\n\tis rare to find a case in which. objections to
\n\t782<\/span>
\n\tthe validity of a public purpose of an acquisition can\teven
\n\tbe  stated in a form in which the challenge  could  succeed.
\n\tIndeed,\t questions relating to validity of the\tnotification
\n\ton the ground of malafides do not seem to US to be ordinari-
\n\tly  open in a summary enquiry under section 5A of  the\tAct.
\n\tHence,\tthere  seems  to us to be  little  difficulty\t  in
\n\tcompleting  enquiries contemplated by section 5A of the\t Act
\n\tvery expeditiously.\n<\/p>\n
\t    Now,  the purpose of section 17(4) of the Act is,  obvi-
\n\tously,\tnot merely to confine action under it to. waste\t and
\n\tarable\tland  but ,also to situations in  which\t an  inquiry
\n\tunder section 5A will serve no useful purpose, or, for\tsome
\n\toverriding reason, it should be dispensed with. The  mind of
\n\tthe Officer or authority concerned has to be applied to\t the
\n\tquestion whether there is fan urgency of such a nature\tthat
\n\teven  the  summary proceedings under section 5A of  the\t Act
\n\tshould\tbe eliminated.\t It is not just the existence of  an
\n\turgency\t but  the  need to dispense with  an  inquiry  under
\n\tsection 5A which has to be considered.\n<\/p>\n
\t    Section  17(2)  deals with a case in  which\t an  enquiry
\n\tunder  section 5A of ‘the Act could not possibly  serve\t any
\n\tuseful\tpurpose.    Sudden change of the course of  a  river
\n\twould leave no option if essential communications have to be
\n\tmaintained.  It\t results in more or less indicating,  by  an
\n\toperation  of natural physical forces beyond human  control,
\n\twhat  land should be urgently taken possession of.    Hence,
\n\tit offers no difficulty in applying  section 17(4) in public
\n\tinterest. And, the particulars of’. what is .obviously to be
\n\tdone  in  public  interest need not be\tconcealed  when\t its
\n\tvalidity  is questioned in a Court of justice.\tOther  cases
\n\tmay  raise questions involving consideration of facts  which
\n\tare  especially\t within the knowledge  of  the\t authorities
\n\tconcerned.    And, if they do not discharge   their  special
\n\tburden,\t imposed by section 106 Evidence Act,  without\teven
\n\tdisclosing   a sufficient reason for their  abstention\tfrom
\n\tdisclosure,  they have to take the consequences\t which\tflow
\n\tfrom the non-production of the best evidence which could  be
\n\tproduced on behalf of the State if its stand was correct.
\n\tIn  the case before us, the public purpose indicated is\t the
\n\tdevelopment  of an area for industrial and residential\tpur-
\n\tposes.\t .This in itself, on the face of it, does  not\tcall
\n\tfor  any such action, barring exceptional circumstances,  as
\n\tto make immediate possession, without holding even a summary
\n\tenquiry\t under\tsection 5A of the Act, imperative.   On\t the
\n\tother  hand, such schemes generally take  sufficient  period
\n\tof  time to enable at least summary inquiries under  section
\n\t5A of the Act to be completed without any impediment whatso-
\n\tever  to the execution of the scheme.  Therefore,  the\tvery
\n\tstatement  of the public purpose for which .the land was  to
\n\tbe  ‘acquired indicated the absence of such urgency, on\t the
\n\tapparent facts of the case, as to require the elimination of
\n\tan enquiry under ‘section 5A of the Act.\n<\/p>\n
\t    Again, the uniform and set recital of a formula, like  a
\n\tritual or mantara, apparently applied mechanically to  every
\n\tcase,  itself  indicated that the mind of  the\tCommissioner
\n\tconcerned was only applied
\n\t783<\/span>
\n\tto  the\t question whether the land was waste or\t arable\t and
\n\twhether its acquisition is urgently needed.   Nothing beyond
\n\tthat  seems  to have been considered.\tThe  recital  itself
\n\tshows  that the mind of the Commissioner was not applied  at
\n\tall to the question whether the urgency is of such a  nature
\n\tas to require elimination of the enquiry under section 5A.of
\n\tthe  Act.  If  it was, at least the  notifications  gave  no
\n\tinkling of it at all.  On the other hand, its literal  mean-
\n\ting  was that nothing beyond matters stated there were\tcon-
\n\tsidered.\n<\/p>\n
\t    All\t schemes relating to development of  industrial\t and
\n\tresidential  areas  must  be urgent in the  context  of\t the
\n\tcountry’s need for increased production and more residential
\n\taccommodation.\t  Yet,\tthe very nature of such\t schemes  of
\n\tdevelopment  does not appear to demand such emergent  action
\n\tas  to\teliminate summary enquires under section 5A  of\t the
\n\tAct.\tThere is no indication whatsoever in  the  affidavit
\n\tfiled\t on behalf of the State that the mind of the Commis-
\n\tsioner was applied. at all to the question whether it was  a
\n\tcase  necessitating  the elimination of\t the  enquiry  under
\n\tsection\t 5A of the Act.\t The recitals in the  notifications,
\n\ton the other hand, indicate that elimination of the  enquiry
\n\tunder  section\t5A of the Act was treated  as  an  automatic
\n\tconsequence  of the opinion formed on other  matters.\t The
\n\trecital\t does not say at all that any opinion was formed  on
\n\tthe  need to dispense with the enquiry under section  5A  of
\n\tthe  Act.  It is certainly a case in which’ the recital\t was
\n\tatleast defective.   The burden, therefore, rested upon\t the
\n\tState to remove the defect, if possible, by evidence to show
\n\tthat  some exceptional circumstances which necessitated\t the
\n\telimination  of an enquiry under section 5A of the  Act\t and
\n\tthat the mind of the Commissioner was applied to this essen-
\n\ttial question.\tIt seems to us that the High Court correctly
\n\tapplied\t the provisions of section ‘106 of the Evidence\t Act
\n\tto  place the burden upon the State to prove  those  special
\n\tcircumstances.\talthough  it also; appears to us.  that\t the
\n\tHigh Court was not quite correct in stating its view in such
\n\ta manner as to make it appear that some part of the  initial
\n\tburden of the petitioners under sections 101 and 102 of\t the
\n\tEvidence Act had been displaced by the failure of the State,
\n\tto  discharge its duty under’ section 106 of the  Act.\t The
\n\tcorrect\t way of putting it would have been to say  that\t the
\n\tfailure of the State to produce the evidence of facts  espe-
\n\tcially’ within the knowledge of its officials, which  rested
\n\tupon  it  under section\t   106 of the  Evidence\t Act,  taken
\n\ttogether with the attendant facts gnu circumstances, includ-
\n\ting the contents of recitals, had enabled the petitioners to
\n\tdischarge  their burdens under sections 101 and 102  of\t the
\n\tEvidence Act.\n<\/p>\n
\t    We\tmay  also  observe that if,  instead  of  prolonging
\n\tlitigation by appealing to this Court, the State  Government
\n\thad  ordered expeditious enquiries under section 5A  of\t the
\n\tAct  or\t even afforded the petitioners some  opportunity  of
\n\tbeing  heard before acting under section 17(4) of  the\tAct,
\n\tasking them to show cause why no enquiry under section 5A of
\n\tthe  Act should take place at all, the acquisition  proceed-
\n\tings need not have been held up so long.   In fact, we\thope
\n\tthat the acquisition proceedings have not actually been held
\n\tup.\n<\/p>\n
\t784<\/span><\/p>\n
\t    On\tthe view we take of the cases before us, we find  no
\n\tforce  in  either the appeals by the owners of\tland  or  in
\n\tthose preferred by the State of Maharashtra.   Consequently,
\n\twe  dismiss  all the nine appeals before us.\tThe  parties
\n\twill bear their own costs.\n<\/p>\n
\tP.B.R.\t\t\t\t\t\t     Appeals\n\tdismissed.\n\t785<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Narayan Govind Gavate Etc vs State Of Maharashtra on 11 October, 1976 Equivalent citations: 1977 AIR 183, 1977 SCR (1) 763 Author: M H Beg Bench: Beg, M. Hameedullah PETITIONER: NARAYAN GOVIND GAVATE ETC. Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT11\/10\/1976 BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-168844","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNarayan Govind Gavate Etc vs State Of Maharashtra on 11 October, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/narayan-govind-gavate-etc-vs-state-of-maharashtra-on-11-october-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Narayan Govind Gavate Etc vs State Of Maharashtra on 11 October, 1976 - 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