Delhi Metro Corporation Ltd. vs M/S.Maruti Electricals & Anr.
2016 Latest Caselaw 3617 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CM Appln.16020/2016 in LA APP.327/2014
                                        Reserved on:     09.05.2016
                                        Date of decision: 16.05.2016

       DELHI METRO CORPORATION LTD. ..... Appellant
                    Through Mr.Chandra Prakash, Advocate.

                             versus

       M/S.MARUTI ELECTRICALS & ANR. ..... Respondents
                    Through  Mr.Gaurav Sarin, Mr.S.K.Rout,
                             Advocates for the respondent
                             No.1.
                             Mr.Sanjay Kumar Pathak &
                             Mr.Sunil Kumar Jha, Advocates
                             for the respondent No.2.

+             CM Appln.16015/2016 in LA APP.329/2014

       DELHI METRO RAIL CORPORATION LTD                   .... Appellant
                             Through:   Mr.Chandra Prakash, Advocate.

                             versus

       SH.RAKESH KUMAR GUPTA AND ANR ..... Respondents
                    Through: Mr.Gaurav Sarin, Mr.S.K.Rout,
                             Advs. for the respondent No.1.
                             Mr.Sanjay Kumar Pathak &
                             Mr.Sunil Kumar Jha, Advocates
                             for the respondent No.2.




LA.APP.327/2014 & 329/2014                                  Page 1 of 11
        CORAM:
       HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR , J.

1. The aforesaid applications under Rule 27, Order 41 of the CPC have been filed for bringing on record additional evidence for the purposes of better appreciation of the facts regarding land user of the premises which have been acquired and compensation with respect to which has been awarded by taking the acquired land to be of commercial user.

2. The Land Acquisition Appeals Nos.327/2014 and 329/2014 have been preferred against the final judgment and award dated 21.03.2014 passed in LAC No.482/01/06.

3. For the expansion of Pul Bangash Metro Station, Roshnara Road, Delhi, 425 sq.meters of land from Khasra No.338 in Village Delhi Patti was notified on 27.04.2004. The emergency clause of the Land Acquisition Act, 1894 (hereinafter called as the „Act‟) was invoked under Section 17 of the Act and the proceedings under Section 5A, requiring inviting of objections, were dispensed with vide order dated 17.02.2005. Thereafter declaration under Section 6 of the Act was made.

4. The Land Acquisition Collector, vide his award dated 18.06.2006, assessed the market value of the land of the respondent/land owner at the rate of Rs.14,490/- per sq.meter after giving a finding that the property was a commercial property and the land user was commercial as per the joint survey report conducted by the beneficiary namely the appellant/DMRC.

5. The possession of the land was taken on 27.06.2006.

6. The appellant/applicant, being aggrieved by the said award but owing to the statutory bar under Section 50 of the Act restraining the appellant/applicant from seeking any reference under Section 18 of the Act, filed a writ petition bearing No.3093/2007 before Delhi High Court, assailing the award passed by the Land Acquisition Collector. The writ petition referred to above was disposed of on 08.04.2010 with the following observations/directions:-

(i) The owners of the land concede that it will be open for the reference court to examine the question as to whether the compensation is payable on the basis of commercial rates or residential rates and in case it has to be paid on the basis of residential rates, they have no objection even to the reduction in compensation, if such a situation arises, on the basis of evidence on record notwithstanding Section 25 of the said Act.

(ii) The balance of compensation lying in the deposit in this court in W.P.(C) no.3093/2007 be released to respondents no.3 and 4 therein along with the accrued interest thereon up to the maturity of the FDR in December, 2009, and, if the FDR has been extended further then the same will be encashed with such loss interest as per the norms of the Bank. (this is at request of learned counsel for the owners), subject to security for restitution, including of immovable property, to the satisfaction of the Registrar General of this Court.

(iii)The reference court will now proceed expeditiously to decide the reference which has been adjourned sine die. The writ petitions stand disposed of in the aforesaid terms leaving the parties to bear their own costs."

7. M/s.Maruti Electricals and New Light Enterprises through its proprietor Rakesh Kumar Gupta (Respondent) applied for reference under Section 18 of the Land Acquisition Act against the award of the Land Acquisition Collector whereby the market value of the land at Rs.14,490/- per sq.meter.

8. The Reference Court, vide its judgment dated 21.03.2014 passed in LAC No.1/2013/06 enhanced the award to Rs.1,70,000/- per sq.meter as on the date of notification under Section 4 i.e. on 27.07.2004, apart from the further entitlement of the land owner for Rs.50.45 lakhs for the loss in business as well as solatium at the rate of 30% and an additional amount at the rate of 12% per annum from the date of notification under Section 4 till the date of award or date of dispossession whichever was earlier. The Reference Court also awarded interest on the enhanced amount at the rate of 9% per annum for the first year from the date of dispossession and at the rate of 15% per annum thereafter till the payment of the enhanced amount to the land owner. Interest on solatium and on the additional amount was also awarded in terms of the judgment of the Supreme Court of India in Sundar vs. Union of India (DLT 2001 SC 569).

9. Aggrieved by the aforesaid enhancement of compensation, the appellant/applicant sought a review of the judgment under Section 114 read with Order 47 Rule 1 of the CPC.

10. The contention of the appellant/applicant in the review petition that the documents which ought to have been taken into consideration were never brought on record and, therefore, mistake had crept in the award of the Land Acquisition Collector as also in the judgment under

reference regarding the user of the land as being commercial, was rejected on the ground of the limited scope of any review petition. The Reference Court was of the view that there was no error apparent on the face of the record and, therefore, judgment could not have been reviewed. Thus, the aforesaid review petition was dismissed on 18.07.2014.

11. The appellant/applicant thereafter preferred appeals, viz. LA APP.Nos.327/2014 and 329/2014 against the judgment of the Reference Court.

12. During the course of the argument of the appeals, the applications bearing Nos.16020/2016 and 16015/2016 for leading additional evidence under Order 41 Rule 27 has been filed. The applicant seeks to bring on record the following documents and wishes to lead additional evidence on the issue of land use of the premises which according to the appellant/applicant is residential and not commercial:-

1. Letter dated 24.08.2006, written by the applicant (DMRC) to the LAC stating that he land use of the said property (No.8713 and 8707) which has been treated as commercial, was treated as residential in (i) Award No.05/DC/N/2001-02 for Khasra No.388 min at Pul Bangash, and (ii) Award No.03/1999-2000 for village Delhi Patti. And also requesting to confirm the land use and modify Award No.03/LAC/N/06-07 dated 18.06.2006.

2. Letter dated 16.10.2006, written by the LAC to the DDA.

3. a) Letter dated 06.11.2006, issued by applicant to DDA to ascertain the land use of the land in reference.

b) Letter dated 28.12.2006, issued by Director (AP) II, DDA informing the present applicant that the land use of the land in reference is residential.

c) Letter dated 30.03.2007, issued by the applicant requesting the LAC to modify the said award and change the land use from commercial to residential.

4. Copy of order dated 06.07.2011, passed by reference court pertaining to acquisition in Barakhamba Road, Connaught Place."

13. The appellant/applicant submits that the aforelisted documents could not be produced because of inadvertent mistake of the counsel and if such documents, had been brought on record, it would have had necessary impact on the decision rendered by the Reference Court. It has further been submitted that the applicant had never submitted any evaluation report which declared the land use of the area as commercial. Mr.Chandra Prakash, learned advocate appearing for the applicant has sought to clarify that the evaluation was merely for the purposes of calculating compensation regarding the structures which had come up over the land but the report did not, in any way, reflect the land use of the area under acquisition. It was strenuously urged that the evaluation report was wrongly taken as a joint survey of the notified area at the instance of the officials of the appellant company and Land and Building department.

14. The aforesaid prayer of the appellant/applicant has been seriously contested on the ground of it being not maintainable under the provisions of Rule 27 of Order 41 of the CPC, 1908. The

application under Order 41 Rule 27, it has been argued on behalf of the non-applicant/respondent, lacks in particulars for the same to be accepted namely there being no averment regarding refusal of the Court below in admitting the evidence that ought to have been otherwise admitted and that such evidence was not within the knowledge of the applicant or despite due diligence, the same could not have been produced by him before the Reference Court. In the absence of any pleadings about the aforesaid aspects, the application was necessarily to be rejected summarily. The inadvertence of the counsel appearing for the applicant could not be a ground for bringing in any additional evidence at the appellate stage. It has further been pointed out by the learned counsel appearing for the non-applicant that the documents which are sought to be taken in evidence, cannot in any way be read as to change the user of the land under reference. The correspondences between the DDA and the appellant/applicant merely state that the land use of the area under reference is residential. It does not, in any manner, declare that the land user of the acquired property is not commercial. The area may be residential but the user is commercial. The respondent/non-applicant has laid stress on the fact that it had proved to the satisfaction of the Reference Court that the land user of the acquired property (and not the general area) was commercial.

15. In order to appreciate the contention of the parties, it appears to be necessary to refer to the provisions of Rule 27 of Order 41 CPC which gives powers to a Court, while exercising the appellate jurisdiction, to call for a document.

16. Rule 27 of Order 41 reads as hereunder:-

"27. Production of additional evidence in Appellate Court.- (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 cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to the produced by an Appellate Court, the court shall record the reason for its admission."

17. The general rule is that ordinarily an Appellate Court would not traverse beyond the records of the lower Court and would not admit additional evidence for the asking. However, Section 107 of the Code of Civil Procedure is an exception to this general rule, enabling the Appellate Court to take additional evidence or to require such evidence to be taken subject to the conditions and limitations

prescribed under Rule 27 of Order 41 of the CPC. The circumstances under which additional evidence can be adduced have been enumerated and they are (i) when the Court refuses to admit evidence or (ii) when the party seeking to adduce such additional evidence did not have any knowledge about such evidence or could not have procured such evidence despite exercise of due diligence. Apart from these conditions, additional evidence could also be taken in, if the Appellate Court required the same for pronouncing judgment satisfactorily and comprehensively or for any other substantial cause. Under such circumstances the Appellate Court could allow such evidence or documents to be produced or witnesses to be examined but only after recording the reasons for its admission.

18. The scope of the Rule 27 of Order 41 CPC especially "Clause

(b)" was examined by the Privy Council in Parsotim Thakur vs. Lal Mohar Thakur, AIR 1931 PC 143.

19. The Privy Council in the aforesaid judgment observed as follows:-

".... Under Clause (1) (b) it is only where the appellate Court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent'."

20. Similar view was expressed by the Constitution Bench of the Supreme Court in K.Venkataramiah vs. A.Seetharama Reddy, AIR 1963 SC 1526 wherein it was held that additional evidence could be taken on record if it was found to be necessary for pronouncing judgment and also for "any other substantial cause".

21. A reading of the provisions of Rule 27 of Order 41 leaves no room for doubt that for the purposes of facilitating the Court in delivering judgment, additional evidence could be taken in and it could not be only at the instance of the parties concerned. If the documents have the contents which would facilitate pronouncing of the judgment in a more satisfactory, composite and holistic manner, it could be taken into account.

22. Though the correspondences between the appellant/applicant and the DDA may not, in the absence of other material particulars and evidences, lead to the conclusion that the land user was residential and not commercial, but they do remain important pieces of evidence for this Court to decide whether the enhancement in compensation by the Reference Court was justified.

23. This Court is of the opinion that it would not be proper to reject the aforesaid documents merely because they had not been produced earlier even when it was possible to do so because these correspondences might have a bearing on the final pronouncement. Moreover, since there was a blanket acceptance of the stand of the Union of India by the lawyer for the appellant/applicant before the Court below, there appears to be some force in the submission of the counsel for the appellant/applicant that the incompetence/inadvertence

of a lawyer should not be allowed to affect and impact huge fiscal connotations of the case. In order to remove the cloud of doubt over the land user i.e whether it was residential or commercial, as such consideration only has led to the enhancement of the compensation amount, it appears to be only imperative that the correspondences sought to be taken in evidence be permitted to be brought on record. There would be no requirement of leading any oral evidence in order to prove such correspondences. The objections of the respondent to the above documents have already been taken into account in the preceding paragraphs. The contention of the respondent with respect to the above documents, it is being reiterated, is that even if those documents are treated as evidence, it would not change the nature of the land user of the acquired land.

24. Thus the correspondences referred to above contained in Annexures A-1 to A-4 are taken on record.

25. The applications are allowed to the above extent.

MAY 16, 2016                            ASHUTOSH KUMAR, J
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