Decided on February 14,1962


Cited Judgements :-



MODY,J. - (1.)At this stage the Advocate General states that he wants to cross -examine the witness Krislmaram Tuljaram Divecha on the basis of the facts of certain instances of lettings about which' he will hereafter lead evidence and which he hopes to establish.
(2.)IN this connection, 1 may record that before he concluded the examination -in -chief of this witness, Mr. Gandhi himself had stated that the Special Land Acquisition Officer had given notice to his client, claimant No. 3, that at the hearing of this reference the Special Land Acquisition Officer will rely upon certain instances, that certain particulars of such instances were mentioned in the notice and that he wanted to put questions to the witness on the basis of such instances, including his opinion on that basis. At that stage I prevented Mr. Gandhi from asking this witness questions on such a basis, as it would be a mere hypothetical basis, because at that stage no evidence at all had been led as to the instances proposed to be proved on behalf of the Special Land Acquisition, Officer. At that stage all the relevant facts may not have even been stated in the notice and additional relevant facts may later be elicited even by cross -examination of the witnesses examined in that behalf by the Special Land Acquisition Officer or by the claimant leading additional evidence relating to those instances. At that time I indicated to Mr. Gandhi what appeared to be the proper procedure. What the Advocate General now proposes to do also raises the same point about procedure and it appears that the correct procedure should be formally Laid down for the purposes not only of this reference, but all similar land acquisition references. I, therefore, proceed to consider the entire position and to lay down such procedure.
In this connection there are two basic points which must be borne in mind, The first point is that Section 53 of the Land Acquisition Act provides that save in so far as they may be inconsistent with anything contained in that Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under that Act. A reference made to the Court as to valuation is a proceeding under the Act and Section 53, therefore, clearly applies to it. The second point to be borne in mind is that an award made in acquisition proceedings is, as repeatedly Laid down by judgments, which are binding upon me, a mere offer. Of course, it is not an offer of the nature contemplated by the Indian Contract Act, because there is one particular feature attaching to it by reason of the provisions of Section 25 of the Land Acquisition Act. Even if the claimant fails in his reference, the amount offered by the award cannot be reduced. But that feature is not relevant to the present consideration.

(3.)THE award being merely an offer, the burden of proving that the compensation payable to him in respect of the property acquired exceeds that amount is on the claimant. The burden of such proof would he on the claimant because of the provisions of Sections 101 and 102 of the Indian Evidence Act. There is no provision in the Civil Procedure Code which is relevant to burden of proof. My attention was called to the provisions of Rules 1 and 2 of Order XVIII thereof. They, however, deal with the right to begin and not with the burden of proof. The latter is an obligation and not a right. The claimant must, therefore, lead all his evidence to show what, according to him, is the correct amount of compensation which should be awarded in his reference. The claimant's evidence will include evidence of the instances he wants to rely upon for determining the market value of his property at the relevant date of acquisition and the evidence of his expert valuer. The expert valuer would value the property in acquisition on the basis of the instances of which evidence has been recorded till then. After all such evidence is recorded the claimant must close his case. It is necessary that the claimant must close his case, because till he does so, the burden of proof being on the claimant, the Land Acquisition Officer cannot know and cannot decide for himself whether such burden has been discharged and any case has been made out by the claimant and whether it has become necessary for him -the Land Acquisition Officer -to lead his own evidence.

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