Hitesh Deoraj Gosar And Others vs V.I.D.C. Through Its Executive ...
2022 Latest Caselaw 495 Bom

MCA-416-20                                                                                                                       1/9


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR.

                              MISC. CIVIL APPLICATION (MCA) NO.416 OF 2020
                                                  WITH
                                 CIVIL APPLICATION (CAO) NO.737 OF 2020
                                                    IN
                                    FIRST APPEAL NO.1095 OF 2013 (D)

                              Hitesh Deoraj Gosar, Digras, Dist. Yavatmal and ors.
                                                                -vs-
       Vidarbha Irrigation Development Corporation, Thr. Its Executive Engineer, Madhyam
              Prakalp/Project Station (Kohla Project), Yavatmal, Dist. Yavatmal and ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                                     Court's or Judge's Orders.
or directions and Registrar's orders.


                                      Shri M. G. Bhangde, Senior Advocate with Shri Raheel Mirza,
                                      Advocate for applicants.
                                      Shri A. Parihar, Advocate for respondent No.1.
                                      Shri A. M. Kadukar, Assistant Government Pleader for respondent
                                      Nos.2 and 3.

                                      CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

Arguments were heard on : December 21, 2021 Order is pronounced on : January 14, 2022

Order : (Per A. S. Chandurkar, J.)

The applicants seek review of the common judgment dated

13/10/2020 delivered in First Appeal No.1095/2013 alongwith connected

appeals. By the said judgment the prayer for enhancement in the amount

of compensation as made by the applicants-claimants was turned down by

modifying the judgment of the reference Court dated 17/04/2012.

2. While deciding First Appeal No.1095/2013 along with connected

appeals it was found by the Court that though the applicants had claimed

that they had purchased the acquired land on 07/09/2004 at the rate of MCA-416-20 2/9

Rs.12,54,658/- per hectare, the said sale-deed had not been produced

before the reference Court or before this Court in support of the prayer for

enhancement in the amount of compensation. After referring to the

decisions in The Dollar company, Madras vs. Collector of Madras (1975) 2 SCC

730 and Pehlad Ram and ors. vs. Haryana Urban Development Authority and

ors. (2014) 14 SCC 778 it was observed by the Court that in absence of any

explanation or justification for non-production of the sale-deed of the

acquired land by the applicants despite the fact that it was the applicants

who had themselves purchased the said land and though being the best

piece of evidence in the hands of the claimants it appeared that the sale-

deed had been deliberately not brought on record. The amount of fair

compensation was thereafter determined on the basis of the agreements at

Exhibits-43 to 46 which pertained to small plots of land.

3. Shri M. G. Bhangde, learned Senior Advocate for the applicants by

referring to Civil Application No.737/2020 filed under provisions of Order

XLI Rule 27 of the Code of Civil Procedure, 1908 (for short, the Code)

submitted that the applicants intended to place on record the sale-deed

dated 07/09/2004 by which the acquired land was purchased by the

applicants alongwith order-sheets of the Land Acquisition Case and

certified copies of other documents to indicate conversion of the land to

"Residential Zone". Similarly a copy of the judgment in S.C.S.

 MCA-416-20                                                                       3/9


       No.61/2004 was also being sought to be placed on record.              It was

submitted that the sale-deed dated 07/09/2004 had not been placed on

record before the reference Court or this Court for the reason that the said

sale-deed had been referred to by the Land Acquisition Officer while

passing the award. Despite specific averments in paragraphs 4(d) and

4(e) of the reference application filed under Section 18 of the Land

Acquisition Act, 1894 (for short, the Act of 1894), the same had not been

denied by any of the non-applicants. Since the execution of the sale-deed

was not disputed, it was not produced on record by the applicants.

However on noticing that the Court has found that the said sale-deed

appeared to have been deliberately kept away from the Court an attempt

to place it on record now was being made by the applicants. This was

after realising that it was necessary to place the aforesaid documents on

record. According to the applicants this was necessary to enable the

Court to pronounce satisfactory judgment in the proceedings. Placing

reliance on the decision in Reliance Industries Ltd. vs. Pravinbhai Jasbhai

Patel and ors. (1997) 7 SCC 300 it was submitted that even while exercising

review jurisdiction the Court had the power to permit additional evidence

to be brought on record. It was further submitted that the counsel

representing the applicants before the Reference Court was under a

mistaken conception that non-production of the said documents would not

affect the rights of the applicants. Hence, to prevent miscarriage of justice MCA-416-20 4/9

and in view of such mistaken conception, the Court may permit the

aforesaid documents to be placed on record as the same would assist the

Court in pronouncing the judgment satisfactorily. Reference was also

made to the decision in Rajender Singh vs. Lt. Governor, Andaman and

Nicobar Islands and ors. (2005) 13 SCC 289 in that regard. It was thus

submitted that the civil application be allowed and the applicants be

permitted to place on record and rely upon the documents referred to

therein.

In support of the review application it was submitted that failure on

the part of the applicants in placing the sale-deed dated 07/09/2004 on

record had heavily weighed with the Court while determining the amount

of compensation payable to the applicants towards acquisition of their

land. Attention was invited to the rate at which the land was agreed to be

sold in the year 2001 pursuant to which the suit for specific performance

had been filed. The rate of the land mentioned in the sale-deed reflected

the value as obtaining in the year 2001 while the notification under

Section 4 of the Act of 1894 was dated 15/06/2006. The amount of

compensation determined by the Court in the aforesaid context was

therefore on a lower side when compared to the rate at which the acquired

land was purchased by the applicants. It was further submitted that the

deduction as directed to the extent of 65% was on a higher side. The

normal rule of 1/3rd deduction ought to have been followed and if the MCA-416-20 5/9

acquiring body intended to urge that higher deduction was necessary, the

burden was on the said party to justify as to why higher deduction was

necessary. Reliance in that regard was placed on the decision in Kasturi

and ors. vs. State of Haryana (2003) 1 SCC 354 and M.S.N. Nadaf (since Dead

Thr. LRs) and ors. vs. Special Land Acquisition Officer (2004) 13 SCC 75 to

urge that reasonable deduction of 33% ought to have been directed and by

departing from that rule in the absence of any other material, there was

an error apparent on the face of record warranting exercise of review

jurisdiction. There was no evidence led by the acquiring body to justify

higher deduction. It was thus submitted that the judgment dated

13/10/2020 be accordingly reviewed. Reference was also made to the

decision in Yashwant Sinha and ors. vs. Central Bureau of Investigation Thr. Its

Director and anr. (2020) 2 SCC 338 to indicate the scope of review.

4. Shri A. Parihar, learned counsel for the acquiring body opposed

aforesaid submissions. As regards the prayer for permission to lead

additional evidence was concerned, it was submitted that the requirements

of the provisions of Order XLI Rule 27 of the Code were not satisfied by

the applicants. There was no justifiable reason for non-production of the

relevant documents either before the reference Court or before this Court

in the appeal. All documents were within the knowledge of the applicants

and were available with them. Referring to the provisions of Order XLI MCA-416-20 6/9

Rule 27 of the Code and especially sub-rule (1)(aa) thereof it was

submitted that the ingredients therein were not satisfied by the applicants.

By failing to produce the aforesaid documents before the reference Court,

the acquiring body was deprived of the right to cross-examine the

applicants on the said documents. There was no misconception of fact as

urged as these documents could have been placed on record in the appeal.

The learned counsel referred to the decisions in State of Karnataka and anr.

vs. K. C. Subramanya and ors. (2014) 13 SCC 468 and Sopanrao and anr. vs.

Syed Mehmood and ors. (2019) 7 SCC 76 to substantiate his contention.

As regards the prayer for review, it was submitted that no ground

whatsoever was made out as required by provisions of Order XLVII Rule

1(a) of the Code. The grounds urged would result in re-hearing of the

appeal and there was no error apparent on the face of record to exercise

review jurisdiction. The learned counsel referred to the decision in Sow

Chandra Kante and anr. vs. Sheikh Habib (1975) 1 SCC 674 in that regard. It

was submitted that the review application was liable to be rejected.

5. We have heard the learned counsel for the parties and on giving

due consideration to their submissions, we find no merit in the review

application as well as the application seeking permission to lead additional

evidence. As stated above, it is the case of the applicants that they had

purchased the acquired land on 07/09/2004 and had referred to the same MCA-416-20 7/9

in their statement of claim. Reference to the same was also made in the

reply given by the applicants to the notice issued under Section 9 of the

Act of 1894. It was found while deciding the appeals that the Land

Acquisition Officer did not consider this sale-deed since the valuation of

the land shown therein was, according to the Land Acquisition Officer, on

a higher side. Thus, if that was the reason put forth by the Land

Acquisition Officer for discarding the valuation in that sale-deed, it was

incumbent upon the applicants to have produced their own sale-deed

before the reference Court in support of the prayer for enhancement in the

amount of compensation. Such attempt could have been made at least

before this Court in the appeal filed under Section 54 of the Act of 1894

read with Section 96 of the Code. The same having not been done, it was

observed that the sale-deed perhaps deliberately kept away from the

Court. By moving an application under provisions of Order XLI Rule 27 of

the Code the said sale-deed along with other documents are now sought

to be placed on record. The applicants have not attempted to contend that

despite exercise of due diligence such additional evidence could not be

brought on record either before the reference Court or in the first appeal.

The applicants admit that on realising the need to bring the said

documents on record now so as to enable the Court to pronounce

judgment as contemplated by provisions of Order XLI Rule 27 (1)(b) of

the Code, such permission be granted.

MCA-416-20 8/9

We find that it is only if the appellate Court finds it necessary that

it requires any document to be produced to enable it to pronounce

judgment satisfactorily that such document could be directed to be so

produced by a party. It is not for the applicants to seek to produce such

documents on the premise that same would enable the Court to pronounce

judgment in the proceedings. Reference in this regard can be made to the

decision in K. Venkatramiah vs. Seetharama Reddy, AIR 1963 SC 1526. In

our view if the documents referred to above despite being within the

knowledge and in the custody of the applicants were not produced by

them either before reference Court or before this Court for reasons best

known to them such lacuna cannot be permitted to be filled in by invoking

the provisions of Order XLI Rule 27 of the Code in review jurisdiction.

We therefore find that since the applicants have failed to satisfy the

parameters as laid down in Order XLI Rule 27 of the Code for seeking

permission to produce additional evidence, the prayer made in the civil

application cannot be granted. Civil Application No.737/2020 is therefore

rejected.

6. As regards the contention that there was an error apparent on the

face of record in determining the amount of fair compensation for the

acquired land by directing deduction at a higher rate, we are of the view

that re-examination of the aforesaid aspect would not be permissible in MCA-416-20 9/9

exercise of review jurisdiction. The same would fall within the province of

an appellate Court. This is after considering the ratio of the decisions

relied upon by the applicants. Since the amount of compensation has been

determined after adopting a particular course and by giving reasons

therefor which according to the applicants may be erroneous, the same

cannot be corrected in exercise of review jurisdiction in the absence of

such case being made out under Order XVII Rule 1 of the Code. We are

therefore satisfied that there is no case made out to review the judgment

dated 13/10/2020 in the aforesaid first appeals.

Misc. Civil Application No.416/2020 is accordingly rejected.

No costs.

                                 (G. A. Sanap, J.)                     (A. S. Chandurkar, J.)




   Asmita
Digitally signed byASMITA
ADWAIT BHANDAKKAR
Signing Date:14.01.2022
16:44:21