Case: Land Acquisition Collector and Another Vs. Durga Pada Mukherjee and Others

real purpose of the acquisition, it is for the respondents to disclose, except for good reasons, the relevant material or information, to enable the Court to pronounce on the matter and not to maintain a meaningful silence or indulge in equivocations and double standards, rely on the doctrine of onus of proof and defect the course of justice. For the Court to permit this to be done with success, will be to stultify itself, abdicate its functions and abjure its duties."and on this finding accepted all the five Letters Patent Appeals.5. After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established. Not only had their attention been drawn to the dictum in Somawantis case (supra) but they had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power. It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established. I t further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents. While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power. He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in t hat behalf was on them. In this situation we do not see how the respondents could be given any relief whatsoever. The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power. On the other hand. if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing but dismissal.6. Learned counsel for the respondents urged that they were really entitled to a finding of malafides on the part of the State Government but we find ourselves wholly unable to agree with him. The burden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face of the conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true. the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State. If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansol Sub-Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise of power.7. Mr. Balakrishnan, learned counsel for the respondents raised a preliminary point to the effect that the second notification was void inasmuch as it had been issued while the first notification was still in force. We do not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established. Not only had their attention been drawn to the dictum in Somawantis case (supra) but they had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power. It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established. I t further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents. While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power. He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in t hat behalf was on them. In this situation we do not see how the respondents could be given any relief whatsoever. The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power. On the other hand. if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing butburden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face of the conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true. the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State. If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansol Sub-Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise ofdo not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the Highwe accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansolwithin the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise ofdo not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High