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.
3. 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.
4. 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.
5. At this stage two questions require consideration. The first of such questions is whether, before the claimant closes his case, the claimant should, or should be required to, ask his valuer to value the property in acquisition on the basis, not only of the claimant's own instances of which the claimant has led evidence, but also of the instances of the Land Acquisition Officer of which the Land Acquisition Officer may have given notice in advance to the claimant. This would also include the incidental question whether an obligation should or even can be east on the Land Acquisition Officer to give such notice to the claimant, in advance. The answer to this question is obviously in the negative. Such instances are not part of the case of the claimant. The claimant's obligation would be merely to answer to them or account for them if and when they are proved. Till he closes his case no evidence about such instances would have been led. The Land Acquisition Officer may not succeed in leading evidence of all instances he would like to rely on. Even as regards such of those instances about which the Land Acquisition Officer does succeed in leading evidence, more relevant facts may be elicited by the claimant by cross-examination of the Land Acquisition Officer's witnesses who depose to them. It cannot, therefore, be made obligatory upon the Land Acquisition Officer to give notice to the claimant in advance of the Land Acquisition Officer's instances and their particulars. Similarly, even if the Land Acquisition Officer happens to have given such notice, the claimant should not and should not be permitted to lead evidence on the hypothetical basis of the Land Acquisition Officer subsequently leading evidence as to such instances. Therefore, the claimant must lead only his own evidence, but all of it, and close his case.
6. After the claimant closes his case, it would become the duty of the Land Acquisition Officer to consider whether, on the evidence as led, he, in his turn, should lead any evidence at all. At that stage the Land Acquisition Officer may well take the stand that the claimant has failed to establish that the amount of compensation should be higher than that of the award and invite a judgment without leading any evidence of his own. But it may also happen that the Laud Acquisition Officer may not take such a risk and he may lead evidence of his own. Like the evidence of the claimant, his evidence also would fall into two categories. The first category would include the evidence as to facts relating to the instances upon which the Laud Acquisition Officer himself wants? the Court to rely. The second category would be the opinion evidence of an, expert valuer whom the Land Acquisition Officer may examine as to the correct value of the property in acquisition on the basis of the evidence led in the case.
7. At this stage arises the second of the said questions for consideration. If the Land Acquisition Officer leads evidence as to any instance of his own, should the claimant be confined merely to the cross-examination of the Land Acquisition Officer's witnesses who depose to it? Should the claimant not have an opportunity to lead thereafter the evidence of his own witnesses to bring before the Court additional relevant facts relating to that instance of the Laud Acquisition Officer' itself Justice requires that the claimant must get such an opportunity. But when and how? Mr. Gaudhi contended that a claimant can do so as and by way of leading evidence in rebuttal and relied upon Order XVIII, Rule 3, of the Civil Procedure Code. The Advocate General, however, pointed out that Order XVIII, Rule 3, applies only when several issues arise in a case and the burden of proving some of them is on one party and that of proving the others is on the other party, whereas in land acquisition references involving a dispute as to the quantum of compensation but not apportionment thereof between several claimants, there can be said to be only one issue, viz., what is the correct amount of compensation, the burden of proving which/ is entirely on the claimant. This point urged by the Advocate General is correct. There appears to be no other specific provision in this respect in the Civil Procedure Code, or the Evidence Act or elsewhere, The Advocate General, therefore, quite fairly pointed out that, in order to do .justice, the Court may have to exercise its inherent power under Section 151 of the Code of Civil Procedure. Mr. Gandhi, in his turn, pointed out the provisions of Section 135 of the Indian Evidence Act. The provisions of that section also are relevant to the present consideration. Section 135 first merely states that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil procedure, and then states that, in the absence of any, such law, by the discretion of the Court. Under both the said provisions, therefore, the Court has the necessary power to devise the necessary procedure for this purpose to secure the ends of justice.
8. Now, in my opinion, the opportunity should be given to the claimant only for the purposes of putting before the Court all the correct and relevant facts, It is the facts which, as sought to be established by the Land Acquisition. Officer, have, to be met by the claimant. Therefore, in my opinion, the correct stage at which the claimant should be asked to lead his evidence, if any, would be after the Land Acquisition Officer has completed all his evidence as to facts, but before he leads his evidence which is purely opinion evidence. In such an eventuality, when the claimant is given the chance of leading evidence as to facts, that evidence must necessarily be confined to the instances proved or sought to be proved on behalf of the Land Acquisition Officer. In other words, it would not be a second opportunity to the claimant to prove more instances of which he had not led evidence before he closed his case. Further, after the claimant completes such further evidence, if any, the claimant must also get an opportunity to ask his expert vainer to give his opinion on the basis of the additional facts comprised in the additional instances proved or sought to be proved, on behalf of the Land Acquisition Officer and thereafter for that purpose the expert, who has been examined by the claimant, will have to be recalled. After the expert is, recalled, he will again be examined on behalf of the claimant, but confined to the situation arising by reason of the facts relating to the additional instances. There would therefore be further cross-examination on behalf of the Land Acquisition Officer and thereafter further re-examination, if any, on behalf of the claimant. After such additional evidence of the claimant's expert is over, the expert of the Land Acquisition Officer would be examined for the purposes of his deposing as to his opinion about valuation.