Karnataka High Court
Nandi Infrastructure Corridor vs Shivakumar T Wadhwa on 22 August, 2013
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
WRIT PETITION NOS.36158 TO 36160/2013 (LA-RES)
Between:
1 Nandi Infrastructure Corridor Enterprise Limited,
Having Office at No.1, Midford Houe,
Midford Garden, Off Mahatma Gandhi Road,
Bangalore - 560 001,
reptd. By its Authorised Signatory,
Mr.D.Ravishankar.
2 Nandi Economic Corridor Enterprises Limited,
Having office at No.1, Midford House,
Midford Garden, Off Mahatma Gandhi Road,
Bangalore - 560 001,
Reptd. Herein by its Authorised Signatory,
Mr.D.Ravishankar. .... Petitioners.
(By Sri D.L.N.Rao, Sr. Adv. For Sri V. Vinay Giri, Adv.)
And:
1 Shivakumar T. Wadhwa,
Since deceased by his L.Rs.
2
1(a) Smt. Kanta S. Wadhwa,
W/o late Shivakumar T. Wadhwa,
Aged about 71 years.
1(b) Sri Harish S. Wadhwa,
S/o late Shivakumar T. Wadhwa,
Aged about 45 years.
1(c) Sri Prataap S. Wadhwa,
S/o late Shivakumar T. Wadhwa,
Aged about 39 years.
All are r/a Aerolex Centre,
No.109, K.H.Road,
Bangalore - 560 027.
2 Aerolex Private Limited,
Having registered office at
99/2, Narasimha Raja Road,
New Raja Bldg., 1st Floor,
Bangalore - 560 002,
Reptd. By its Managing Director.
3 Special Land Acquisition Officer,
Karnataka Industrial Areas
Development Board,
Bangalore - 560 009. .... Respondents.
(By Sri T.S.Amar Kumar, Adv. For Lawyers Inc., Advs. For
R1(a) to R1(c) and R2
Sri P.V.Chandrashekar, Adv. For R3)
3
These Writ Petitions are filed under Articles 226 & 227 of
the Constitution of India, praying to set aside the order dated
8.8.2013 passed by the Senior Civil Judge, Nelamangala, in LAC
Nos.151 to 153/2009, etc.
These Writ Petitions coming on for Further Hearing this day,
the Court passed the following:
ORDER
In these cases, the petitioners have called in question the validity of the order on I.A.No.22 dated 8.8.2013 in LAC Nos.151 to 153/2009 on the file of the Senior Civil Judge and JMFC, Nelamangala whereby the application filed by respondent Nos.1(a) to 1(c) and 2 for summoning the agreement dated 16.7.2008 in their custody has been allowed.
2. Sri Shivakumar T. Wadhwa, the predecessor in title of respondent Nos.1(a) to 1(c) and respondent No.2 were the joint owners of certain extent of lands situated at Madavara Village, Dasanapura Hobli, Nelamangala Taluk. The said lands were 4 acquired by the competent authorities. Being dissatisfied with the quantum of compensation awarded by the 3rd respondent, Shivakumar T.Wadhwa and the second respondent herein sought reference to the Civil Court. The matter was accordingly referred to the Civil Court wherein it was numbered as LAC Nos.151/2009, 152/2009 and 153/2009. The private respondents have let in their evidence. The petitioners herein have also examined three witnesses. When R.W3 was being cross-examined, the order of this Court in W.P.Nos.18562 to 18567/2013 and other connected matters disposed of on 20.6.2013 was marked. There is a reference to an agreement at Annexure 'N' entered into by the petitioners with M/s Ajmera Builders (Bangalore) Private Limited in the said order. The witness appears to have pleaded ignorance of the agreement. The private respondents filed I.A.No.22 under Order 16 Rule 6 of the CPC for summoning of the said agreement. The application was opposed by the petitioners. The court below has allowed the application by its order dated 8.8.2013. 5
3. Sri DLN Rao, learned Senior Counsel appearing on behalf of the petitioners would contend that the agreement dated 16.7.2008 has already been cancelled. The preliminary notification proposing to acquire the land was issued on 2.6.1999, which was followed by a final notification dated 18.2.2003. The agreement cannot be relied on for determination of the compensation. He draws my attention to Section 23 of the Land Acquisition Act, 1894 ('Act' for short) and submits that for determination of the amount of compensation , the Court has to take into consideration the date of issuance of the notification under Section 4(1) of the Act. The notification is dated 2.6.1999 and the agreement is dated 16.7.2008. The agreement is not necessary for the determination of compensation. In this connection, he has relied on the decision of the Apex Court in RAVINDER NARAIN AND ANOTHER VS. 6 UNION OF INDIA - (2003) 4 SCC 481 and SPECIAL LAND ACQUISITION OFFICER VS. KARIGOWDA AND OTHERS - (2010) 5 SCC 708. It is further argued that unless the agreement of sale has not matured into a sale transaction, not much assistance could be derived from the agreement for the determination of market value of the acquired land. In this connection, he has relied on the decision of the Apex Court in U.P.AVAS EVAM VIKAS PARISHAD VS. JAINUL ISLAM AND ANOTHER - AIR 1998 SC 1028. It is further argued that after the closure of the evidence, the private respondents have filed the above application. This Court in MFA Nos.9493 to 9495/2011 disposed of on 17.4.2013 has directed the trial Court to decide the case within three months from 27.5.2013. The application is highly belated. Order 16 Rule 6 of the CPC has no application for summoning the document. Even Order 11 Rule 14 has no application because the document has nothing to do with the land in question. In this connection, he places reliance on the decision of the Apex Court in BASANAGOUDA VS. 7 DR.S.B.AMARKHED AND OTHERS - (1992) 2 SCC 612.
Learned Senior Counsel further submits that the agreement contains the confidentiality and non-disclosure clause. Therefore, they cannot be produced.
4. On the other hand, Sri T.S.Amar Kumar, learned Counsel appearing for respondent Nos.1(a) to 1(c) and respondent No.2 submits that the agreement in question was produced in W.P.Nos.18562 to 18567/2012 and other connected matters and the same was marked as Annexure 'N'. The said writ petitions have been disposed of on 20.6.2013. The order of this Court was marked in the evidence of R.W3. Since the xerox copy of the document was produced in the aforesaid writ petitions, they are not entitled for a certified copy of the said document. The agreement has already been produced in the writ petition before this Court. The petitioners cannot therefore contend that it cannot be summoned as 8 it contains confidentiality and non-disclosure clause.
5. It is argued that the petitioners have agreed to sell the land at Rs.4 crores per acre which is far in excess of the award amount. No prejudice whatsoever will be caused to the petitioners if the said document is produced. The agreement will be an indicator for determining the market value. It is argued that under Order 16 Rule 6 of the CPC, a party to the case can also be summoned to produce the document. Under Section 162 of the Evidence Act, 1872, a witness summoned to produce document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court at a later stage. That is why the court below has kept open the validity and relevancy of the document for consideration at the time of the judgment. He prays for dismissal of the writ petitions.
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6. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
7. It is not in dispute that the Reference Court had earlier passed an award enhancing the compensation to Rs.70,00,000/- per care for the acquired land and Rs.30,00,000/- for the structure then existing thereon. The said award was challenged by the petitioners before this Court in MFA Nos.9493 to 9495/2011. This Court by order dated 17.4.2013 set aside the award and remitted the matter back to the Reference Court for fresh consideration with a direction to dispose of the matter within three months from 27.5.2013.
8. Respondent Nos.1(a) to 1(c) and the second respondent have filed application I.A.No.22, after the conclusion of the 10 evidence when the matter is posted for arguments.
9. There is no merit in the contention of the learned Counsel for the petitioners that the application is not maintainable under Rule 6 of Order 16 of the CPC. The said Rule states that any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. The expression 'any person' includes a party to the proceedings. The application cannot be rejected on the ground of maintainability. The document has already been produced along with the writ petitions referred to above. The petitioners cannot contend at this stage that the agreement contains certain confidential clauses. 11
10. But the question is whether the court below is justified in entertaining the application and directing the petitioners to produce the agreement?
11. As noticed above, the preliminary notification for acquisition of the land was issued on 2.6.1999. The agreement is dated 16.7.2008. For the determination of the compensation, the Court has to take into consideration the date of issuance of the notification under Section 4(1) of the Act. The Apex Court in RAVINDER NARAIN's case (supra) and KARIGOWDA's case (supra), has held that the requisites for a sale to merit consideration as a comparable sale are when the sale is within a reasonable time of the date of notification under Section 4(1). Learned Counsel for the petitioners contend that the agreement has been cancelled. Even if it is assumed that the agreement has not been cancelled, since it was executed after nine (9) years from the date of the preliminary 12 notification, it cannot be relied on for the purpose of determination of compensation.
12. Secondly, the agreement has not matured into a sale transaction. The Apex Court in JAINUL ISLAM's case (supra) has held that unless the agreement of sale has not matured into a sale transaction, not much assistance could be derived from the agreement in the matter of determination of market value of the acquired land. Therefore, there in no merit in the contention of the learned Counsel for the private respondents that the sale consideration mentioned in the agreement can be an indicator for determination of the market value.
13. Apart from the fact that the application is highly belated, no purpose will be served if the document is summoned. In my view, the court below is not justified in allowing the application- 13 I.A.No.22.
14. In the result, the writ petitions succeed and they are accordingly allowed. The order dated 8.8.2013 on I.A.No.22 in LAC Nos.151 to 153/2009 on the file of the Senior Civil Judge, Nelamangala is quashed. No costs.
Sd/-
JUDGE.
BMM/-