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2012 DIGILAW 31 (BOM)

Maria Elvira das Neves Ferreira Trindade v. Deputy Collector

2012-01-06

U.V.BAKRE

body2012
Judgment :- This appeal is directed against the judgment and award dated 10/03/2003 passed by the learned District Judge, South Goa, Margao (reference court, for short) in Land Acquisition Case no. 11 of 1995, by which the said reference under section 18 of the Land Acquisition Act, 1894 (L.A. Act, for short), made by the respondent no.1(L.A.O.), at the instance of the appellants, has been rejected. 2. Heard learned Advocate Shri Sudin Usgaonkar for the appellants and learned Additional Government Advocate Shri V. Rodrigues for the respondent no. 1. Perused the record and proceedings. 3. There is no need for this Court to narrate the facts regarding the background of the reference and the claim of the appellants, in view of the order that is being passed. 4. On 21/6/2002, AW/1, Mr. Ceasar Vas, the power of attorney holder of the appellant no.6, during his deposition before the reference court, sought to produce on record and tender in evidence the awards of the learned District Judge/Additional District Judge in Land Acquisition Cases No. 104/92; 15/94; and 256/91. The learned Advocate for the respondents objected to the production of the said awards, on the ground that they were not relied upon by the appellants. The learned reference court upheld the objection and refused to accept those awards. In the cross-examination of AW-1, various questions have been asked and suggestions have been put to him not only regarding the said awards in L. A. Cases No. 104/92; 256/91; and 15/94 and the acquired lands which were subject matter of those awards but also regarding the award in L. A. Case No. 20/91 and the acquired land concerned in it. That gives an idea that AW-1 had also tried to produce on record and rely upon the said award in L.A. Case 20/91 but the same was not accepted on account of the same reason for which the other awards were not accepted. 5. It is seen from the records that after completion of the testimony of AW-1, the appellants, on the same day i.e. on 21/06/2002 had filed an application (Exh.36), before the reference court, praying for leave to rely upon and produce the said documents namely: a) Award passed by the District Judge, South Goa at Margao in L.A. Case no. 256/1991; b) Award passed by the Additional District Judge in L.A. Case no.104/1992 on the 21st of November, 1998;. 256/1991; b) Award passed by the Additional District Judge in L.A. Case no.104/1992 on the 21st of November, 1998;. c) Award passed by the Additional District Judge, South Goa at Margao in L.A.Case no. 20/1991; and d) Award passed by the Additional District Judge, South Goa at Margao in L.A.Case no. 15/1994. 6. The records further reveal that by order dated 19/07/2002, which is at Exhibit 37, the learned reference court allowed the application, Exhibit 36 and granted leave sought for to produce the awards mentioned in the said application. Such leave was granted under Order 7 Rule 14(3) of the Code Of Civil Procedure. In terms of the said provision, if leave was granted, then the documents in respect of which the leave was granted had to be received in evidence on behalf of the appellant no. 6, at the hearing of the case. However, it is is noticed from the roznama dated 19/7/2002 that the case was fixed for the evidence of the respondents, on the next date of hearing i. e. on 9/8/2002, without giving opportunity to the appellant no. 6 to produce in evidence and prove the said documents. 7. On 9/8/2002, the appellants filed an application (Exhibit 38) before the reference court, for leave to examine the applicants of the L. A. Cases referred to in paragraph 5 above, namely Mr. Hilario Pereira; Mr. Jose Almeida; Mr. Allan Camara; and Mrs. Maria Do Carmo da Costa Pinto, respectively. However, by order dated 30th August 2002, at Exhibit 40, the learned reference court dismissed the said application. 8. In the present appeal, inter-alia, the said order dated 30/8/2002 has been challenged on the following grounds: (i) Once the application for leave to produce the said documents was allowed by order dated 19/7/2002, the question of not permitting the appellants to produce the said documents through their witnesses did not arise; (ii) The question of considering the justification or otherwise with regard to the adjournments granted prior to 19/7/2002 was irrelevant at the time of passing the impugned order; (iii) The said order has resulted in miscarriage justice and in breach of the principles of natural justice, in as much as, the appellants were deprived of their right to adduce proper evidence to enable the court to determine the compensation of the acquired land. 9. Now, during the course of arguments, Mr. 9. Now, during the course of arguments, Mr. Sudin Usgaonkar, learned advocate, on behalf of appellants, submits that the said 4 awards are material for the purpose of determination of the market value of the acquired land and therefore an opportunity be given to the appellant no. 6, in the interest of justice, to produce on record and prove the awards, through the said witnesses for which purpose the matter be remanded back to the reference court, by setting aside the judgment and award dated 10/3/2003 and the said order dated 30/8/2002, which according to Shri Usgaonkar, has caused miscarriage of justice and which violates the principles of natural justice. The learned Additional Government Advocate has, no doubt, objected to the said exercise , on the ground that the same would further delay the disposal of the case after already prolonged trial before the reference court. 10. The short point for determination is therefore whether the reference court was justified in rejecting the application dated 9/8/2002 (Exhibit 38). 11. The object behind Rule 14(3) of Order 7 is to see that suspicious evidence i.e. the evidence, the very existence of which, at the date of the Plaint, is doubtful, is excluded. In the present case, the learned reference court allowed production of the said awards, inter-alia because they are public documents, the genuineness of which cannot be doubted. Once that was done, an opportunity had to be given to the appellant no. 6 to exhibit and prove the said documents as otherwise the order dated 19/7/2002 becomes meaningless. The history of the proceedings prior to 19/7/2002 was totally irrelevant for consideration at the time of passing the impugned order dated 30/8/2002. In my view, the mere fact that in the past adjournments had been sought for would not be of any materiality. During the course of arguments, on the application dated 9/8/2002 (Exhibit 38), the learned Advocate for the appellant no. 6 had even submitted that the appellant undertakes to bring the said witnesses at one hearing. 12. In my considered opinion, the impugned order dated 30/8/2002 is in breach of the principles of natural justice and it has taken away the opportunity, from the appellant no. 6, to produce adequate evidence to prove the market value of the acquired land and thus has caused miscarriage of justice. Interference of this court is therefore warranted. 12. In my considered opinion, the impugned order dated 30/8/2002 is in breach of the principles of natural justice and it has taken away the opportunity, from the appellant no. 6, to produce adequate evidence to prove the market value of the acquired land and thus has caused miscarriage of justice. Interference of this court is therefore warranted. The impugned judgment and award dated 10/3/2003 and the impugned order dated 30/8/2002 are liable to be quashed and set aside. 13. In the result, I pass the following: ORDER (1) The appeal is partly allowed. (2) The impugned judgment and award dated 10/3/2003 is quashed and set aside. (3) The impugned order dated 30/8/2002 is also quashed and set aside. (4) The matter is remanded back to the reference court,for deciding the same afresh. The reference court shall permit the appellant no. 6 to produce on record the said four awards mentioned in application Exh.36 and to adduce oral evidence, if any, pertaining only to those awards. The appellant no. 6 shall produce, on her own, all the witnesses named in the application dated 9/8/2002 (Exhibit 38), before the reference court, at one hearing. (5) The respondents shall also be permitted to adduce any evidence,if any, in rebuttal, pertaining only to those awards. (6) Parties to appear before the Principal District and Sessions Judge, South Goa, Margao on 10/02/2012 at 10.00 a.m. (7) Since the matter is pretty old, the reference court shall dispose of the matter expeditiously and in any case within a period of three months from the date of receipt of the writ. (8) The appeal is disposed of accordingly.