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Himachal Pradesh High Court · body

2012 DIGILAW 928 (HP)

Fozal Power Pvt. Ltd. v. Prem Dass

2012-12-04

SURINDER SINGH

body2012
Judgment SURINDER SINGH, J. The appellant is a Private Limited Company incorporated under the Companies Act, 1956. The land in question was acquired by the Collector, Land Acquisition for them to set-up a small hydro electric power project of 9 Megawatt in village Dwara and Phattis Dwara and Meha in Tehsil and District Kullu, pursuant to the notification issued under Section 4 of the Land Acquisition Act, on 6.3.2007, in short ‘the Act’. 2. The appellant-Company felt aggrieved by the enhancement made by the civil Court in the above petitions, which were decided on 26.9.2011 precisely on the ground that after the evidence was led and the judgment was reserved by the learned Reference Court for its pronouncement at that stage in between an application under Section 151 of the Code of Civil Procedure seeking permission to tender the copy of sale-deed No.79 dated 20.1.1999, which was already on record, in evidence and mark exhibit. Though, it was resisted by the appellants as not tendered in evidence at the time of examining witnesses of the claimants, but the learned Reference Court allowed the application consequently tendered in evidence Ext.PX sale-deed aforesaid without affording any opportunity of its rebuttal; which caused procedural infirmity depriving of the appellants to cross-examine the witnesses of the claimants with reference to it or rebut this document. 3. Shri Ashok Aggarwal, learned Senior Advocate, assisted by M/s. S.K. Dubbey, Ajay Mohan Goel, Amit Gaurav, Vinod S. Bhardwaj and Sanjeev Punj, Advocates, submitted that the procedure adopted by the learned District Judge was unheard of and not correct. It is also ventilated that even the learned District Judge did not afford any opportunity to address arguments afresh in view of the admission of fresh evidence on record, but he put reliance wrongly on such an evidence as contained in para 23 of the award, which was not substantiated either by the vendor or the vendee. Thus, the impugned award is unsustainable. 4. To counter the above arguments Shri Naveen Bhardwaj, for the private respondents while supporting the findings of the learned District Judge, submitted that the said document (Ext.PX) was already on record. Its reference was also made by the witnesses in their statements, but it escaped the notice of the learned Counsel and he could not tender it in evidence. 4. To counter the above arguments Shri Naveen Bhardwaj, for the private respondents while supporting the findings of the learned District Judge, submitted that the said document (Ext.PX) was already on record. Its reference was also made by the witnesses in their statements, but it escaped the notice of the learned Counsel and he could not tender it in evidence. Otherwise also, the admission of the said evidence by virtue of Section 51-A of the Act is legal and valid and the Court rightly considered it in the light of the other evidence on record. Therefore, no interference is called for 5. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record and the legal position in contentions. 6. I find a good deal of substance in the submissions made by the appellants’ Counsel. To ascertain the factual aspect I have gone through the record of the learned District Judge. Its perusal reveals that all the above reference cases were taken up by him on 27.7.2010 and identical issues were framed. Thereafter the evidence was taken down separately at the same time but on different dates. Though the cases were not clubbed/consolidated, virtually similar type of evidence was recorded and similar application to tender in evidence sale deed Ext. PX was moved which was followed by the identical order consequently the impugned award. 7. Further the record reveals that the claimants had closed their evidence on 26.11.2010 and appellants on 29.4.2011. The arguments were finally heard on 27.7.2011 and the reference petitions were adjourned for 25.8.2011 for judgment, but on that day judgment was not pronounced being not ready, as such it was adjourned for 19.9.2011. But before that, i.e., on 13.9.2011 the claimants moved an application under Section 151 of the Code of Civil Procedure seeking permission to tender in evidence the copy of the sale-deed (No.79) dated 20.1.1999 (Ext. PX) executed by Smt. Shailja in favour of Indian Oil and the file was taken up on 15.9.2011. Learned counsel for non-applicants accepted notice and filed reply on 21.9.2011. The matter was heard and decided on the same day. The application was allowed and the copy of the sale-deed was tendered in evidence as Ext.PX. 8. PX) executed by Smt. Shailja in favour of Indian Oil and the file was taken up on 15.9.2011. Learned counsel for non-applicants accepted notice and filed reply on 21.9.2011. The matter was heard and decided on the same day. The application was allowed and the copy of the sale-deed was tendered in evidence as Ext.PX. 8. Pertinently, the learned Reference Court while disposing of the said application ordered that the matter stood already heard and adjourned for judgment on 26.9.2011 without according any fresh opportunity to the appellants for rebuttal of the newly admitted document and announced the impugned award mainly relying upon this document in controversy, which is wrong and not appreciated. 9. Section 51-A was inserted by Act No.68 of 1984 in the Land Acquisition Act specifically with the object of obviating the insistence for examination of anyone connected with the transaction mentioned in the sale-deed relating to similar land situated in vicinity of acquired land if the Court has to consider such transaction as evidence in the case. In fact, the State has the burden to prove the market value of the land acquired by it for which the State may have to depend upon the prices of lands similarly situated which were transacted or sold in the recent past, particularly those lands situated in the neighbouring areas. The Apex Court in Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah, AIR 2001 SC 1117 observed that the practice had shown that for the State officials it was a burden to trace out the persons connected with such transactions mentioned in the sale-deeds and then to examine them in Court for the purpose of proving such transactions. It was in the wake of the aforesaid practical difficulties that the new Section 51-A was introduced which reads as under: “51-A. Acceptance of certified copy as evidence.-In any proceedings under this Act a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under Section 57 of that Act, may be accepted as evidence of the transaction recorded in such document”. [Emphasis supplied] 10. [Emphasis supplied] 10. The Apex Court taking note of the provision held that the words “may be accepted as evidence” in the Section indicate that there is no compulsion on the Court to accept such transaction as evidence, but it is open to the Court to treat them as evidence. Merely accepting them as evidence does not mean that the Court is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the document may be treated as evidence, just like any other evidence and it is for the Court to weigh all the pros and cons to decide whether such transaction can be relied-on for understanding the real price of the land concerned. It is open to the Court to act on the documents regarding transaction recorded in such documents. However, this will not prevent any party who supports or opposes the said document or the transaction recorded therein to adduce other evidence to substantiate their stand regarding such transaction (s). But it is not possible to hold that even after the introduction of Section 51-A the position would remain the same as before. Therefore, the certified copies of the sale-deeds can be considered even without examining persons connected with the transactions mentioned therein. 11. Further, in acquisition proceedings, the sale-deeds are required to be brought on record for the purpose of determining the market value payable to the owner, when it is sought to be acquired. Thus both the parties are also free to produce the original primary document and prove the same in accordance with the terms of the rules of evidence as envisaged under the Indian Evidence Act. But the Land Acquisition Act provides for an alternative thereto by inserting the above provision in terms whereof the certified copies which is secondary in character may be brought on record evidencing a transaction. Such transactions in terms of aforementioned provision may be accepted in evidence though not a primary evidence. Therefore, the acceptance of evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record. Acceptance of evidence by the Court would be dependent upon the facts of the case and other relevant factors. Therefore, the acceptance of evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record. Acceptance of evidence by the Court would be dependent upon the facts of the case and other relevant factors. A piece of evidence in a given situation may be accepted by a Court of law but in another it may not be so accepted or may decline to rely upon it to assess the market value at the relevant time by a reasoned order. 12. A registered document in terms of Section 51-A of the Act may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof. It only shifts the burden of proof against whom the presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the Court may act on the basis of such presumption. Even when in terms of the Evidence Act, a prevision has been made that the Court shall presume a fact; the same by itself would not be irrebuttable. The genuineness of a transaction can always fall for adjudication, if any, question is raised in this behalf. Now the question is raised in appeal that Ext.PX was allowed in evidence and was relied upon to assess the market value of the land without examining its vendor or vendee to the prejudice of the appellants without affording any opportunity of rebuttal. 13. The Constitution Bench of the Supreme Court In Cement Corporation of India Ltd. v. Purya and others, AIR 2004 SC 4830 , affirmed the above principle of law and the interpretation of Section 51-A, as correct while dealing with the real object of Section 51-A of the Act. 14. Since it is an admitted position that in the instant cases the arguments were already heard without reference to the document Ext.PX, which came subsequently in evidence as aforesaid and no chance of rebuttal was given to the appellants, and further the denial of addressing the arguments by the appellants the learned District Judge grossly acted in contravention of the well established principle of law and natural justice. 15. Therefore, for the afore-stated reasons, the impugned award is unsustainable, as such set aside. 15. Therefore, for the afore-stated reasons, the impugned award is unsustainable, as such set aside. Consequently, all the above appeals are allowed and cases are remanded back to the learned District Judge, Kullu for affording an opportunity to lead evidence in rebuttal of Ext.PX and decide the same in the light of entire evidence on record which the parties have and would bring on record after hearing them. In the above factual background, I deliberately avoided to comment upon the other evidence on record to prevent any prejudice to any of the parties to the lis, as I felt for the present, it is not relevant to be discussed and the learned trial Court is free to reassess the same in the light of any other evidence brought on record in accordance with law and dispose of the cases on its merit. 16. The above titled appeals are accordingly disposed of, so also the pending application(s), if any. 17. The parties are directed to appear before the learned District Judge on 5th January, 2013. Send down the records forthwith so as to reach the Court below before the date fixed.