Bombay High Court
Moreshwar Shankar Phatak And Anr. vs State Of Maharashtra And Ors. on 20 December, 2002
Equivalent citations: 2003(3)MHLJ127
Author: A.P. Shah
Bench: A.P. Shah, R.K. Batta
JUDGMENT A.P. Shah, J.
1. Admit. Respondents waive service. By consent appeal is taken up for hearing.
2. This appeal is directed against the judgment and order dated 29th August, 2000 passed by the Joint Civil Judge (Senior Division), Yavatmal, in Land Acquisition case No. 65 of 1992. By the said judgment and order, the trial court dismissed the reference under Section 18 of the Land Acquisition Act, 1894, hereinafter referred to as "the Act", as barred by limitation. Briefly stated the facts are that the land of the appellants was acquired under the provisions of the Act for Arundhati Project. The Award was declared by the Collector on 18th February, 1992 in the absence of the parties. Notices were caused to be issued to the land owners on 18th April, 1992 under Section 12(2) of the Act. According to the appellants the notices under Section 12(2) were received by them on 29th April, 1992. By letter dated 15th May, 1992 the appellants requested for sending a copy of the Award to enable them to file a reference within limitation. A copy of the Award was supplied to the appellants on 25th May, 1992. The reference under Section 18 of the Act was filed on 6th June, 1992. The Collector forwarded the reference to the District Court on 11th June, 1992. In reference application, it was specifically stated that the claimants derived knowledge of making of the Award by the Collector's notice, dated 18th February, 1992, which was received on 29th April, 1992. These dates were not disputed in the written statement filed on behalf of the respondents.
3. The trial court initially framed following issues.
"1. Whether the applicants prove that there was non-agricultural potentiality in the acquired land even before the date of notification i.e. 9-1-1989?
2. If so, what was the rate of non-agricultural land prevailing in the month of January, 1989 in Sr. No. 5/1 as well as field adjoining the same?
3. Whether the applicant is entitled to get compensation per sq. ft., as claimed by him?
4. If yes, what should be the rate of compensation per sq. ft. ?
5. What order?"
The appellants led evidence. At the deposition of last witness on behalf of the appellants, which was recorded on 6th October, 1988, evidence was closed. The Trial court thereafter framed following two additional issues :--
"6. Whether the reference is within limitation?
7. Whether the reference is tenable under law?"
The appellants again entered the witness box and deposed that they received the notice on 29th April, 1992. The respondents did not adduce any evidence in rebuttal.
4. On appreciation of the evidence placed on record, the trial court recorded a finding that the appellants are entitled to enhanced compensation of Rs. 9,90,540.00 and the solatium at the rate of 30% on the amount of enhanced compensation under Section 23(2) of the Act and interest under Section 23(1)(A) at the rate of 12% per annum on the amount of Rs. 9,90,540.00 from the date of notification under Section 4 of the Act i.e. 19th December, 1988 to the date of taking possession i.e. 26th March, 1990 and further interest at 9% per annum on the enhanced amount of Rs. 9,90,540.00 for the period of one year from 26th March, 1990 and for subsequent years at 15% p.a. as per the provisions of Section 28 of the Act. The trial court, however, held that the reference was barred by limitation. The trail court was of the view that the burden of proof was on the appellants to prove that their reference was within limitation and the appellants ought to have called upon the Collector to produce record of the Collector to prove the fact of date of dispatch of the notice and its receipt by the first appellant and in the absence of this material the oral evidence led by the appellants cannot be accepted. The trial court, therefore, dismissed the reference.
5. The short question which falls for consideration is whether the reference is barred by limitation. In the present case the Award was made on 18th February, 1992. There is no dispute that at the time of making of the Award by the Collector, neither the appellants nor their representative were present before him. There is also no dispute that the notices under Section 12(2) were issued to the landowners on 18th April, 1992. By letter dated 15th May 1992, the appellants wrote to the Collector about receipt of the notices on 29th April, 1992 and requested for sending a copy of the Award. The reference was forwarded to the trial Court under the cover of Collector's letter dated 11th June, 1992. It was specifically mentioned in the said letter that the application for reference was made in proper time. In the reference application, the appellants specifically averred that the Award was communicated to the appellants by registered post on 29th April, 1992. This averment contained in paragraph 26 of the reference is not traversed in the written statement. The acknowledgment receipt and the dispatch record, which would have thrown light on this controversy, was not produced before the court. The trial court has observed that it was the duty of the appellants to call upon the respondents to produce the record and since the appellants failed to get the records produced, the burden of proof placed on the appellants was not discharged. In our opinion, the approach of the trial court is totally erroneous. Even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at the issue. It is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
6. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1927 PC 6 at page 8, Lord Shaw observed :
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly to furnish to the courts the best material for its decision. With regard to third parties, this may be right enough -- they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This view was affirmed by the Apex Court in Gopal Krishnanji Ketkar v. Mohamed Haji Latif and Ors., . The above observations of the Judicial Committee do not support the view taken by the trial court that unless a party is called upon to produce a document which could throw light on the issues in controversy that party is under no obligation to produce such documents. Such a view is inconsistent with the illustration (g) of Section 114 of the Evidence Act. We have, therefore, no hesitation to hold that the reference is within limitation.
7. So far as the merits are concerned, the trial court has come to the conclusion that the market rate of the Land was Rs. 10/- per sq. ft. The trial Court has relied upon two sale deeds of the years 1983 and 1980 respectively. The trial court has also placed reliance on the Award in respect of field Survey No. 20/3 in a companion reference application wherein the market price was held to be Rs. 10/- per sq. ft. The total area of the acquired land is 1 Hectare 22 Ares, i.e. 1,30,680 sq.ft. After deduction of 1/5th area, the total compensation payable at the rate of Rs. 10/- per sq.ft. would be Rs. 9,90,540/-. The appellants are also entitled to solatium under Section 23(2) and interest under Section 23(1)(A) and Section 28.
8. In the result, appeal succeeds. The judgment and order of the trial court is set aside. The respondents do pay to the appellants enhanced compensation of Rs. 9,90,540/- with solatium at the rate of 30% on the amount of enhanced compensation and interest at the rate of 12% p.a. on the amount of Rs. 9,90,540/-from 19th December, 1988 to the date of taking possession i.e. 26th March, 1990 and further interest at the rate of 9% p.a. for the period of one year from 26th March, 1990 and for subsequent years at the rate of 15% p.a. Issuance of certified copy expedited.