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TMI Blog1976 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... r as to make it appear that some part of the initial burden of the petitioners under sections 101 and 102 of the Evidence Act had been displaced by the failure of the State, to discharge its duty under’ section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially’ within the knowledge of its officials, which rested upon it under section 106 of the Evidence Act, taken together with the attendant facts gnu circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under sections 101 and 102 of the Evidence Act. X X X X Extracts X X X X X X X X Extracts X X X X ..... stantially the same terms as those in the other three groups; but, there was no direction under section 17(4) of the Act. Consequently, the appellant filed his objection' on 9th January, 1964. Later, a notification under section 6 of the Act on 13th July, 1964, was accompanied by identically worded vague declaration of urgency under section 17(4) of the Act. This strange course of action suggests that notification under section 17(4) was probably made only to save the botheration of the inquiry begun under section 5A of the Act which should and could have been concluded quite easily before 13th July, 1964. In Writ Petitions before the High Court, the submission that no public purpose existed was not pressed in view of the decision of this Court in Smt. Somavanti & Ors. v. The State of Punjab & Ors. U' [1963] 2 SCR 774. In Shri Ramtanu Co-operative Housing Society Ltd. & Anr. v. State Maharashtra. & Ors.( [1971] 1 SCR 719) acquisition of land for development of industrial areas and residential tenements for persons to live on industrial estates was held to be legally valid for a genuinely public purpose. This ground, therefore, need not detain us, although file appellants, who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, there is a bare submission stating the alternative case that the 3rd respondent had formed the opinion that the said lands were urgently required for the public purpose mentioned therein. But, no facts or particulars are stated to which the mind of the Commissioner could have been applied in forming the opinion that the situation called for declarations-cum-directions, under section 17(4) of the Act, to dispense with inquiries under section 5A of the Act in these cases. It is important to. remember that the mind of the officer or authority concerned has really to be directed towards formation of an opinion on the need to dispense with the inquiry under Section 5A of the Act. It is true that, in such cases, the formation of an opinion is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than Courts could ordinarily on such matters. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which Courts do impose. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other words, the dispute is whether it is the petitioner who has to bring the material before the Court to support his contention that no urgency existed or whether, once the petitioner denied that any urgency existed, it was incumbent upon the respondent to satisfy the Court that there was material upon which the respondents could reach the opinion as mentioned in section 17(4)." On the evidence before it, the High Court recorded its conclusions as follows: "In the case before us the petitioner has stated in the petition more than once that the urgency clause had been applied without any valid reason. The urgency clause in respect of each of the said two notifications concerning the lands m groups Nos. 1 and 2 is contained in the relative section 4 notification itself. The public purpose stated in the notification is 'for development and utilization of the said lands as an industrial and residential area'. To start with, this statement itself vague, in the sense that it is not clear whether the development and utilization of the lands referred to in that statement was confined to the lands mentioned in the schedule to the Notification or it applied to a. wider area of which su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfusing. He observed: "It was only later that Courts began to discuss such things as presumption and onus". He also said that "the word onus is used indifferently throughout the books. sometimes meaning the next move or step in the process of proving and sometimes the conclusion". In Phipson on Evidence (11th Edn.) (at page 40, paragraph 92), we find the principles stated in a manner which sheds considerable light on the meanings of the relevant provisions of our Evidence Act: "As applied to judicial proceedings the phrase 'burden of proof' has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading-the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of adducing evidence." It is then explained: "The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. 'It is an ancient' rule rounded on considerations of good sense, and it should not be departed from without strong reasons'. It is fixed at the beginning of the trial by the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to show that there was no other practical way of carrying out the power which would have that effect". Turning now to the provisions of our own Evidence Act, we find the general or stable burden of proving a case stated in section 101 as follows: "101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". The principle is stated in section 102 from the point of view of what has been sometimes called the burden of leading or introducing evidence which is placed on the party initiating a proceeding. It says: "102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side". In practice, this lesser burden is discharged by merely showing that there is evidence in the case which supports the case set up by the party which comes to Court first, irrespective of the side which has led that evidence. An outright dismissal in limine of a suit or proceeding for want of evidence is thus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch raise either a presumption of law or of fact. Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by Courts inthe course of. administration of justice to remove lacunae in the chain of direct evidence before iL It is, therefore, said that the function of a presumption often is to "fill a gap" in evidence. True presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the. party which initiates a proceeding or comes with a case to Court offers no evidence to support it, the presumption is that such evidence does not exist. And, if some evidence is shewn to exist on a question in issue, but the party which has it within its power to produce it, does not, despite notice to it to do so,. produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or particular onus. The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have resulted in such urgency that no enquiry under section 5A of the Act could reasonably be held. The High Court had relied on the following passage from Barium Chemicals Ltd. v. Company Law Board(A.I.R. 1967, S.C. 295 to 309): " ...... An action, not based on circumstances suggesting an inference of the; enumerated kind will not be valid. In other words, the enumeration of the inferences which may be drawn from the circumstances, postulates the absence of a general discretion to go on a fishing expedition to find evidence. No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out . Since the existence of circumstances' is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by section 101 and section 102 of the Evidence Act cannot be shifted by the use of section 106 of the Evidence Act, although the particular onus of proving facts and circumstances lying especially within the knowledge of the official who formed the opinion which resulted in the notification under section 17(4) of the Act rests upon that official. The recital, if it is not defective, may obviate the need to look further. But, there may be circumstances in the case which impel the Court to look beyond it. And, at that stage, section 106 Evidence Act can be invoked by the party assailing an order or notification. It is most unsafe in such cases for the official or authority concerned to rest content with non-disclosure of facts especially with in his or its knowledge by relying on the sufficiency of a recital. Such an attitude may itself,justify Further judicial scrutiny. In Sibnath Banerjee's case (supra) also, facts which led an authority to pass a detention order could be said to lie especially within its knowledge. If there could be certain facts, in Sibnath Banerjee's ease (supra), winch Sibnath Banerjee as well as the official making the order knew, it could, similarly, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order including the fulfilment of the conditions precedent and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complied with by the authority: (see the observations of Spens C.J. in King Emperor v. Sibnath Banerjee([1944]F.C.R. 1,42) which were approved by the Privy Council in King Emperor v. Sibnath Banerjee"([1945]F.C.R, 195,216). This Court also said there: "Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately' arise and burden would be thrown on the person challenging the fact of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of s. 17 are applicable the Court may legitimately draw an inference that the State Government did not honestly form that opinion or that in forming that opinion the State Government did not apply its mind to the relevant facts bearing on the question at issue. It follows therefore that the notification, of the State Government under s. 17(4) of the Act directing that the provisions of s. 5A shall not apply to the land is ultra vires". In Brahma Shah's case (supra), a condition precedent to the application of section 17(4) was held to be unsatisfied inasmuch as the land in respect of which the proceeding was taken was found to be forest land which could not be classified as "arable or waste land". Learned counsel for the State relied strongly on the judgment of this Court in I. G. joshi Etc. v. State of Gujarat & Anr. ([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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner that the Government had not formed an opinion about the need for action under section 17(4) of the Act "could not raise an issue". We do not think that we need express any opinion here on the question whether such an assertion can or cannot even raise a triable issue. All we need say is that a triable issue did arise and was decided by the High Court in the cases now before us. This issue was whether the conditions precedent to exercise of power under section 17(4) had been fulfilled or not. We think that such a question can only be decided rightly after determining what was the nature of compliance with the conditions of section 17(4) required by the Act. We think that section 17(4) cannot be read in isolation from sections 4(1) and 5A of the Act. The immediate purpose of a notification under section 4(1) of the Act is to enable those who may have any objections to make to lodge them for purposes of an enquiry under section 5A of the Act. It is true that, although only 30 days from the notification under section 4(1) are given for the filing of these objections under section 5A of the Act, yet, sometimes the proceedings under section 5A are unduly prolonged. But, cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om disclosure, they have to take the consequences which flow from the non-production of the best evidence which could be produced on behalf of the State if its stand was correct. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. This in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under section 5A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which .the land was to be 'acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under 'section 5A of the Act. Again, the uniform and set recital of a formula, like a ritual or mantara, apparently applied mechanically to every case, itself indicated that the mind of the Commissioner concerned was only applied to the question w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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