Andhra HC (Pre-Telangana)
The Land Acquisition Officer And ... vs Chigurupati Umamaheswara Rao And ... on 15 June, 1992
Equivalent citations: AIR1993AP8, 1992(3)ALT33, AIR 1993 ANDHRA PRADESH 8, (1993) 1 RENTLR 393, (1992) 2 ANDHWR 261, (1992) 3 ANDH LT 33
ORDER
1. The State Government acquired two extents of lands in Bhavanipuram on the outskirts of Vijayawada town--(i) approximately 110 acres for construction of houses for middle and low income group people by the A. P. Housing Board; and (ii) acres 9-30 cents for providing house sites to members of weaker sections. In respect of the land acquired for construction of houses by the Housing Board, the notification under Section 4(1) of the Land Acquisition Act was issued on 02-4-1980, and the draft declaration under Section 6 of the Act was made on the same day. The Land Acquisition Officer, after taking into consideration 151 sale deeds relating to lands in the contiguity and of comparable nature covering the period 1977 to 31-3-1980, determined the market value of the land at Rs. 37,600/- per acre exclusive of the solatium and other statutory benefits. The claimants sought a reference to civil court under Section 18 of the Act contending that the market value should be determined at Rs. 3,00,000/- per acre. The Principal Subordinate Judge, Vijayawada, in O.P. No. 390/82 passed the award on 30-6-1986 determining the market value of the land acquired at Rs. 1,25,000/- per acre exclusive of the permissible statutory benefits. Several appeals were preferred to this Court; a learned single Judge of this Court directed, at the interlocutory stage, to deposit the entire amount of compensation awarded by the Civil Court. Against that order, Letters Patent Appeals were preferred and a Division Bench of this Court directed the Land Acquisition Officer to deposit half of the amount of compensation awarded.
2. As regards the 9 acres and 30 cents of land acquired for providing house-sites to weaker sections, the notification under Section 4(1) of the Act was issued on 05-1-1979, and the Land Acquisition Officer, after following the procedure prescribed by the Act, passed the award on 26-3-1981 determining the market value of the acquired land at Rs.34,200/- per acre exclusive of other permissible statutory benefits. On a reference under Section 18 of the Act, the Civil Court in O.P. No. 266/81 enhanced the market value to Rs. 1,52,875/- per acre exclusive of the other statutory benefits. A.S. No. 506/ 83 was preferred against the above O.P.
3. The claimants as well as the Land. Acquisition Officer have filed these miscellaneous petitions seeking permission to adduce additional evidence. On behalf of the Land Acquisition Officer, in respect of the 110 acres of land acquired by the Housing Board, six documents are filed as additional evidence; in regard to the 9 acres and 30 cents of land acquired for providing house-sites to weaker sections, two documents are filed as additional evidence. On behalf of the claimants two sale agreements dated 27-4-1982 and one sale deed of the year 1988 are filed as additional evidence.
4. Although both the sides have filed applications for permission to adduce additional evidence, in so far as the petitions filed on behalf of the Land Acquisition Officer are concerned, the same are opposed vehemently by the learned counsel for the claimants. We shall now refer to the nature of the documents filed on behalf of the Land Acquisition Officer in respect of the iwo extents of the land. Two extracts of registered documents bearing document Nos. 5576/79 and 5579/ 79, dated 20-8-1979 are prior to the notification under Section 4(1) of the Act. The other four documents relate to the post-notification period; two bear the date 30-12-1982 and the other two bear the dates 28-6-1983 and 29-12-1983. In regard to the awards covering the land acquired for weaker sections, the documents are dated 14-2-1977 and 02-5-1977.
5. What provoked the Land Acquisition Officer to file the applications for permission to lead the "additional evidence needs to be mentioned. In the affidavit filed in support of the petitions it was averred by the Sub-Collector, Vijayawada, that on behalf of the Land Acquisition Officer, in the proceedings under Section 18 of the Act, no evidence was adduced and when the matters were entrusted to the counsel at Hyderabad for filing appeals, while going through the case records, the counsel (Sri C Poornaiah) found a letter addressed by one M. Subbarao resident of Vijayawada to the Chief Minister with a copy marked to the Housing Board making serious allegations to the effect that the price of the land was only Rs. 12,000/- per acre during 1979-80, that the officials of the Housing Board and the advocates entrusted with the Court work did not show any interest and that there were rumours that the claimants have sufficient hold over the officials of the Housing Board as well as the lawyers representing the interests of the Government. The said Subbarao enclosed copies of registered sale deeds in respect of certain lands in the neighbourhood to show that the prevailing price of the land was only Rs. 40,000/- per acre and he alleged that not less than 25 documents would be found covering the period March 1982 and December, 1983. Tt was further averred in the affidavit of the Sub-Collector that, after making efforts to secure relevant documents, the present application was filed. It was also specifically averred in the affidavit that although suffi-cient evidence in the form sale deeds was available to support the case of the Land Acquisition Officer, the same was not placed before the Sub-Collector for the reasons mentioned in the affidavit.
6. Sri C.Poornaiah. learned Counsel for the 1 and Acquisition Officer, has submitted that the Land Acquisition Officer as well as the Counsel appearing for the Land Acquisition Officer in the proceedings under Section 18 of the Act are guilty of misconduct in that they did not deliberately place any evidence before the Court in support of the case of the Government. He, therefore, says that the documents now filed as additional evidence are vital and have a material bearing on the question of the valuation of the acquired lands. Opposing this submission Sri K Jagannadha Rao and Sri K. F. Baba, learned Counsel for the claimants, contend that no case is made out to gram permission for production of additional evidence under Order 41, Rule 27, CPC. Failure to adduce available evidence cannot be a ground to grant permission for production of additional evidence. They also contend that the present applications for receiving additional evidence must be heard along with the main appeals and that the same cannot be disposed of independently.
7. We have given our anxious consideration to the questions raised in these miscellaneous petitions. What is clear and apparent from a reading of the Award passed by the Civil Court under Section 18 of the Act is that no evidence whatever was adduced on behalf of the Land Acquisition Officer. Claim petitions filed by the claimants and the sketch of the acquired land marked as Exhibits B-1 and B-34 were brought on record through the witnesses examined on behalf of the claimants but not any independent witnesses on behalf of the Land Acquisition Officer. The power of the appellate Court to take additional evidence or grant permission to produce the same is found in Sec. 107(1)(d) and Order 41, Rule 27, CPC. Section 107(1)(d) reads:
"107. Powers of Appellate Court.-- (1)Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to (c) xx xx
(d) to take additional evidence or to require such evidence to be taken."
Rule 27 reads :
"27.(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial case, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
8. Although the learned counsel for the claimants h'ave not disputed the legal position that under Order 41, Rule 27(1)(b)--the provision under which the additional evidence is" now sought to be adduced--if the appellate Court requires any document to be produced to enable it to pronounce the judgment, the same can be received as additional evidence, in the present case there is no need at all for this Court to have recourse to additional evidence as ample opportunity was given to both the parties in the proceedings under Sec. 18 before the Civil Court to adduce evidence.
9. The law on this subject is fairly well settled. The principle that the appellate Court's requirement for additional evidence to enable it to pronounce judgment and the corresponding obligation to record the reasons for admission of additional evidence was embodied even in Section 568 of the earliest Code of Civil Procedure, 1850. Interpreting the provisions of Section 568 the Privy Council in Kessowjiissur v. Great Indian Peninsula Railway, (1907) 34 Ind App 115 at p. 122 observed :
".....the legitimate occasion for S. 568 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it."
10. Negligence or wrong advice of the counsel in not producing evidence which ought to have been produced, was held to be not a "substantial cause" within 0.41, Rule 27(1)(b), by a Division Bench of the Bombay High Court in Mallappa Minappa v. Venkaji Appaji, AIR 1930 Bombay 272.
11. Even if one or both the parties pointed out any defects to the Court at the appellate stage and seek permission to rectify the defects, it was ruled by the Privy Council in Parsotim v. Lal Mohar, AIR 1931 PC 143 at 148-149:
".....the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."
12. In the same case it was held by the Privy Council that Order 41, Rule 27 was not intended to:
"allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal."
And that the legitimate occasion to exercise power under clause 1(b) is not whenever a party applied to adduce additional evidence but:
"When on examining the evidence as il stands some inherent lacuna or defect becomes apparent."
13. If the party had in his possession sufficient evidence which was not produced at the time of trial, the same should not be permitted to be brought on record at the appellate stage was the view expressed by the Division Bench of Madras High Court in Ramarayanimgar v. Venkata Lingam, AIR 1932 Mad 709.
14. The view expressed in Parasotim v. Lal Mohar, (AIR 1931 PC 143) (supra) was reiterated by the Privy Council in Mohd. Akbar Khan v. Motai, AIR 1948 PC 36.
15. Rejecting the view that additional evidence should not be permitted at the appellate stage to enable one of the parlies to remove certain lacunae in presentirg the case at the proper stage and to fill in gaps, the Supreme Court held in State of U. P. v. Manbodhan Lal, , which arose out of writ petitions :
"Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties."
16. The rationale for incorporation of the duty to record reasons by the appellate Court while admitting additional evidence under Order 41, Rule 27 was explained by the Supreme Court in Venkataramaiah v. Seethararaa Reddy, :
"Where a further appeal lies from the decision of the appellate Court such recording of the reasons is necessary and useful also to the Court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the Court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For it does not seem reasonable to think that the legislature-intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate Court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provisions in the second clause was not complied with.....It is true that the word "shall" is used in R. 27(2), but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission."
Although the state of the record strictly does not require additional evidence to enable the appellate Court to pronounce judgment, the Supreme Court ruled that it was open to the appellate Court to receive additional evidence if:
"it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27(l)(b) of the Code."
17. Expounding another facet of Order 41, Rule 27(1)(b) the Supreme Court in Municipal Corporation of Greater Bombay v. Pancham, ruled :
"This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence."
18. Restating the principle that a document which could have been produced at the relevant time but not produced should not be received as additional evidence, the Supreme Court in Sunder Lal and Son v. Bharat Handicrafts Pvt. Ltd., seems to have engrafted an exception to the effect that even in such circumstances additional evidence could be received if rational explanation was furnished for non-production of the document.
19. If the appellate Court had recourse to Order 41, Rule 27 it is mandatory to record reasons:
"to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence. Land Acquisition Officer. C.l.T. Bangalore v. H. Narayanaiah, ."
20. A case should not be remanded under Order 41, Rule 27 for adduction of fresh evidence if the evidence was "available but was not adduced" is the latest pronouncement of the Supreme Court on this branch of law, Koyappathodi M. Ayisha Umma v. State of Kerala, .
21. In the light of the above legal principles we must consider whether the parties should be permitted to adduce additional evidence. We are not inclined to permit the parties to bring on record any documents relating to the period subsequent to S.4(1) notification; we shall state the reasons later. As regards the documents covering the period antecedent to S.4(1) notification, we are inclined to take the view that the same should be brought on record. The first set of two documents, registered documents Nos. 5576 of 79 and 5577 of 79 are dated 20-8-1979. The lands covered by these two documents --copies of the sale deeds -- are situate in Bhavanipuram, on the outskirts of Vijaya-wada, the same place where the acquired lands are situate. The other set of two documents, documents Nos. 204 of 77 and 876 of 77, are copies of sale deeds in respect of two extents of land situate in the same Bhavanipuram. These four sale deeds were taken into consideration by the Land Acquisition Officer while determining the market value of the acquired land. Neither the Land Acquisition Officer nor the counsel appearing for him has evinced any interest to adduce any evidence in support of the correctness of the awards impugned in the Section 18 proceedings. Even the sale transactions which were looked into by the Land Acquisition Officer for the purpose of estimating the market value of the acquired lands were not brought on record. No one gave evidence on behalf of the Land Acquisition Officer and no document in support of the correctness of the impugned awards was marked. We have been noticing a disturbing trend in recent times; in many cases where the State or a public authority is a party, even minimum care is not evinced by the officers and the counsel entrusted with the responsibility of looking after the litigation. This attitude engenders, rightly in our view, a feeling in the minds of the right thinking public that diligence and honesty are deliberately sacrificed by interested groups and individuals in order to cause unjust enrichment of private parties. In these matters the counsel and the public officials behaved in a callous manner throwing to winds their minimum responsibilities. Their bona fide were, therefore, doubted by Sri Poornaiah, the learned counsel who in no unmistakable terms asserted "that they were guilty of misconduct". When attempts were made by counsel and public officials to contrive situations of inactivity suggestive of want of good faith, this Court cannot accord judicial assent by declining to render substantial justice between the parties. Public interest lies primordially in safeguarding public revenues. When sufficient information is placed before this Court suggestive of bad faith and collusion on the part of the counsel and public officials entrusted with government litigation, it is clear and apparent that there was miscarriage of justice. We are conscious of the principle that when a party had opportunity to adduce evidence but the same was not availed of, discretion should not be shown in, favour of that party at the appellate stage by permitting additional evidence under Order 41, Rule 27(1)(b). But this principle loses relevance if additional evidence is necessary to render justice to the parties. The Civil Court in the proceedings under Sec. 18 declined to look into the sale statistics collected by the Land Acquisition Officer observing that the same are "liable to be rejected, in the absence of evidence of the vendor or vendee connected with the documents." Examination of parties to the document is necessary and if they are not available the attesting witnesses who have personal knowledge of the transactions must be examined; otherwise the documents which formed the basis for the award passed by the Land Acquisition Officer cannot be even looked into by the Civil Court in the proceedings under Sec. 18. Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, . The learned Subordinate Judge, Vijayawada after noticing the legal position has specifically pointed out the lapse committed by the Land Acquisition Officer in not adducing evidence even in respect of the documents examined by him which formed the basis of the award:
".....the Land Acquisition Officer has not filed the sale documents relied by him nor examined the vendee or vendor or the attestors of the documents, the sale statistics concerning to R.S. No. 66 on which the Land Acquisition Officer relies, in fixing the market value of the acquired lands cannot be considered."
In the absence of any evidence forthcoming from the Land Acquisition Officer, the matter was considered by the Court below only with reference to the evidence adduced by the claimants; it was indeed, so to say, a one horse race.
22. We are inclined to think that the above four sale deeds should he brought on record as the same arc necessary to enable this Court to pronounce judgment. The very conduct of the counsel and the officials entrusted with the litigation at the Stage of Sec. 18 proceedings and the dear allegation by Shri Poornaiah, learned counsel that they were guilty of misconduct constitute special reasons which cannot be ignored by us. The four documents which were considered by the Land Acquisition Officer at the stage of award proceedings are documents which must necessarily be considered by us in order to decide the matter in a just and effective manner. The requirement of additional evi-dence by the appellate Court "to enable it to pronounce judgment" under Order 41, Rule 27(1)(b) necessarily implies requirement to pronounce a just and effective judgment, but not a one-sided one. Negligence of parties or the late stage of proceedings held to be relevant reasons for declining to exercise discretion under Order 41, Rule 27 by this Court in Krishna Reddi v. Yaganti Reddi, (1954) 1 Andh LT 187 and relied upon by Shri K. Jagannadha Rao, learned counsel for the claimants, is of no relevance in the particular fact situation. When once we are of the view that the aforesaid documents are essential for a just decision, the question whether the documents arc in favour of one party or the other becomes irrelevant and, therefore, the ruling of this Court in Venku Reddi v. Pichi Reddi, AIR 1956 Andh Pra 250 relied upon for the claimants has no application.
23. Negligence or wrong advice tendered by the counsel or failure to utilize the opportunity to lead evidence at the trial stage which are held to he valid reasons for not exercising discretion under Rule 27(1)(b). Mallappa Minappa v. Venkaji Appaji, AIR 1930 Bom 272 (supra), ordinarily applies to cases where both parties are private individuals, but not in matters where the State is one of the parties and that too when misconduct was alleged against the counsel and the officials entrusted with the litigation.
24. The notifications under Section 4(1) of the Act in both sets of cases - lands acquired for the Housing Board and for house-sites to weaker sections -- were issued on 02-4-1980 and 05-1-1979 respectively. The awards of the Land Acquisition Officer were passed on 26-6-1982 and 26-3-1981 respectively. There are four documents relating to the post-notification periods which are sought to be adduced as additional evidence on behalf of the Land Acquisition Officer. Two of these documents bear the date 30-12-1982 and the other two bear the dates 28-6-1983 and 29-12-1983. On behalf of the claimants two sale agreements dated 27-4-1982 and one sale deed of the year 1988 are filed for consideration as additional evidence. We are not inclined to permit the parties to bring on record the aforesaid documents. These documents came into existence long after the awards were passed by the Land Acquisition Officer. Sri C. Poornaiah contends that there is no bar to take into consideration documents relating to post-award periods; sometimes it is necessary, according to the learned counsel, to take them into consideration. He relies upon certain ruling of the Supreme Court:
25. In State of Uttar Pradesh v. Jitendra Kumar, . The High Court relied upon a sale deed dated 11-7-1951 for purpose of enhancement of compensation, although the notification under Section 4(1) was issued on 06-1-1948. One of the questions that fell for consideration before the Supreme Court was whether reliance upon a sale deed which came into being three years after the notification under Section 4(1) of the Act could be placed for purpose of determination of compensation. The Supreme Court upheld the view taken by the High Court on the ground that there was no material to show that between the date of notification under Section 4(1) of the Act and the sale deed dated 11-7-1951 there was no fluctuation in the land value. V, D. Tulzapurkar, J. speaking for the two Judge Bench observed (at p. 877 of AIR):
"It is true that the sale deed Ex. 21 upon which the High Court has relied is of a date three years later than the notification under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ex. 21 under which the Housing Society itself had purchased land in the neighbourhood of the land in dispute."
26. Jitendra Kumar case was cited with approval by another two-Judge Bench of the Supreme Court in Administrator General of West Bengal v. Collector, Varanasi, wherein one of the questions considered was whether a sale-deed that came into being one year after the notification under S. 4(1) of the Act could be taken into account for determining the compensation. Answering the question in the affirmative, His Lordship M. N. Venkata-chaliah, J. pertinently observed (Para 6, at p. 948 of AIR):
"The sale transaction at Ext. 24 was an year later. Such subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area. Further under certain circumstances where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value."
27. In Chaimanlal Hargovinddas v. Special Land Acquisition Officer, Poona, another two-Judge Bench of the Supreme Court, speaking through His Lordship M. P. Thakkar, J., while laying down the factors that must be taken into account in the determination of compensation abserved inter alia (at p. 1657 of AIR) :
"Even post-notification instances can be taken into account, (1) if they are very proximate, (2) genuine, and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospectus."
28. Citing Administrator General of West Bengal v. Collector, Varanasi, (supra), His Lordship M. H. Mania, J. (as he then was) in Mehta Ravindrarai Ajitrai v. State of Gujarat, ruled that an agreement of sale entered into about five months after the publication of notification under Section 4(1) of the Act also could be relied upon to determine the compensation as the document was proved and duly marked as exhibit and there was "nothing in the evidence to show that there was any sharp or speculative rise in the price of the land after the acquisition and this has been noticed by the High Court.....Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and indeed the best evidences of market value"
29. One important factor that must be noticed is that none of these post-notification sale transations was produced as evidence before the learned Principal Subordinate Judge in the proceedings under Section 18 of the Act. It is one thing to say that the prices mentioned in post-notification (under S. 4(1)) sale transactions should be taken into account if the documents are genuine and are duly proved, but it is totally a different thing to say that such type of documents should be permitted to be brought on record by way of _ additional evidence. The 1988 sale deed was long after the award was passed by the learned Principal Subordinate Judge under S. 18 of the Act. There are no convincing reasons as to why the other documents were not filed and got marked as exhibits on behalf of the claimants. The conditions precedent for reception of additional evidence as mandated in O.41, R. 27(1)(b) CPC are not present. It is not as though every post-notification sale transaction constitutes good evidence to determine the market value of the acquired land. Only in the absence of any material indicating fluctuation of land value, post-notification sale transactions can be taken into consideration is the rule laid down in Jitendra Kumar case . None of the aforesaid relings lays down the proposition that any post-hotification docii-inerit, when placed before the Court, even at the appellate stage, should be treated as additional evidence irrespective of the provisions O.41, R.27 C.P.C. The contentions advanced by both sides in this regard are grounded on wrong assumptions. These documents are not required by this Court to pronounce an effective judgment nor do we discern any substantial cause to receive them as additional evidence.
30. CMC Nos. 4406/92 and 5545/92, filed on belialt of claimants, are dismissed, CMP Nos. 9747/92 and 9748/92 are allowed partly. Unless the documents are duly proved and marked as exhibits they cannot be looked into by this Court as held by the Supreme Cour! in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, (supra). The petitioners in C.M.P. (SR) Nos. 9747/92 and 9748/92 are, therefore, permitted to bring on record the four documents -- registered documents Nos: (1) 5576/79, (2) 5577/79, dated 20-8-1979, (3) 204/77, dated 14-2-1977 and (4) 876/77, dated 02-5-1977, and the learned Principal Subordinate Judge is directed to record the evidene in this regard and also afford an opportunity to the opposite parties (claimants) io adduce evidence in rebuttal, but confined only to the aspects covered by the aforesaid four documents and submit the same to this Court within two months from the date of receipt of a copy of this order.
31. Order accordingly.