STATE OF GOA Vs. DILIPKUMAR RAYA PRABHU MHAMBRE

JUDGEMENT

(1.) THIS Appeal under the Land Acquisition Act has been filed by the State against the Award passed by the District Judge, Panaji, passed in Land Acquisition Case No.82/88 dated 30th September, 1994. By a Notification dated 25th January, 1982, issued under Section 4 of the Land Acquisition Act, 1894, which was gazetted on 28th January, 1982, an extent of 47,525 sq. mts. in survey nos 28/1 to 28/5 and survey no. 30 in Bambolim village was acquired. The Land Acquisition Officer passed an Award on 15th October, 1985, granting a compensation of Rs. 6/- per sq. mt. The Land Acquisition Officer also awarded compensation for the trees and other improvements standing in the property. At the instance of the respondents, the matter had been referred under Section 18 of the Land Acquisition Act to the Reference Court. By the impugned Award the Reference Court classified the land into four classes based on the proximity of the road that is going through the said land. The Court below by the impugned Award has enhanced the compensation at rates varying between Rs. 20/- to Rs. 45/- per sq. mt. based on the said classification of the land, instead of Rs. 6/- per sq. mt. offered uniformally by the Land Acquisition Officer.

(2.) BEFORE the learned Advocate General opened his arguments on behalf of the appellant State, he drew our attention to the judgment of this Court passed on 3rd August, 1996, whereby we had disposed of a batch of 35 First Appeals bearing No.69/92 and others. By the said judgment, the appeals filed by the State were partly allowed thereby maintaining the classification done by the Reference Court, but reducing the market value of the land at rates varying from Rs. 10/- to Rs. 20/- per sq. mt. Since this Appeal also relates to the land covered by the very same Notification and acquired for the very same purpose and that the land being of similar nature, the learned Advocate General submitted that lower Court Award in this Appeal may also be modified in the same manner as was done in the batch of appeals referred to above. Though the submission of the learned Advocate General was fair and just in the circumstances of the case, for reasons best known to the counsel for the respondents, he insisted that this appeal may be separately heard on its own merits and that the judgment relating to the lands covered by those Appeal cannot be made applicable to the case in hand and is required to be dealt with separately. Hence we proceed to dispose this appeal after hearing the same on merits.

(3.) THE learned counsel for the respondent Mr. Kantak, however, contended that there is enough material before the Court below to justify the enhancement made by it. He also filed application as Miscellaneous Civil Application No.366/96 whereby he sought the leave of this Court to produce a document at this stage. By the said application he sought to produce an Award of the Reference Court passed in Land Acquisition Case No.30/89. THE learned Advocate General opposed the said application, on the ground that at the stage of appeal no document is admissible in evidence and more particularly in the facts and circumstances of the case in hand. THE learned counsel for the respondents Shri Kantak, emphatically argued that under Order 41 Rule 27of the Civil Procedure Code this Court can permit a party to appeal to produce documents. It is worthwhile to extract the provisions of Order 41 Rule 27 Civil Procedure Code in order to appreciate the rival arguments advanced by counsel. Order 41 Rule 27 reads thus: - " O. 41 R. 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 be produced by an Appellate Court, the Court shall record the reason for its admission. " It can be seen from the above provision under what circumstances the parties can be allowed to produce the documents at appellate stage. This provision spells out candidly that the power of the Appellate Court to admit a document in evidence has to be exercised very cautiously and sparingly. That power can be exercised only for the ends of justice. Three circumstances are enumerated in this Section where the Appellate Court can permit to produce such additional evidence. One is that where an attempt to produce the evidence did not find favour with the Court below and in the opinion of the Appellate Court the said document is very material to decide the appeal. THE second is that the parties seeking additional evidence should establish that notwithstanding the exercise of due diligence, such evidence could not be produced by him before the Court below. Thirdly, the Appellate Court itself should be satisfied that in order to enable it to pronounce the judgment in the matter, the document is necessarily required to be produced on record. THE learned counsel for the respondents could not satisfy us in which of the three circumstances the present document can be allowed to be produced by the respondents. THE learned counsel for the respondents however, relying on the words "substantial cause", appearing in the above provision of the Civil Procedure Code insisted that the Appellate Court can entertain the document at the Appellate stage. In order to establish the existence of "substantial cause", the learned counsel drew our attention to the document itself. THE document as we pointed out earlier, is an Award passed by the Reference Court. He submits that the land under the said Award was once included in the very same Notification which is the subject matter of the appeal, but subsequently excluded, but, however, in another Notification the land was notified and acquired for some other purpose. THE learned counsel further submits that the document, the sale deed dated 23rd July, 1986, which was pressed into service in the present appeal and which was required to be ignored according to the Advocate General for want of necessary proof, has been proved in this Award by examining the vendor of the document of the sale deed dated 23rd July, 1986. THErefore, the counsel for the respondents argues that a "substantial cause" has been made out to produce the document and therefore, this Court has to exercise the power under Order 41 Rule 27 Civil P. C. to entertain his application.