The Collector Land Acquisition (Adm) v. M/S Andaman Timber Industries Ltd.

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] ...

CO/23/2021 The Collector Land Acquisition (ADM) ... Petitioner Vs.

M/s Andaman Timber Industries Ltd ... Respondent Mr.Shatadru Chakraborty Mr. Ramendu Agarwal ... for the petitioner Mr. KMB Jayapal ... for the respondent/OP April 22, 2022 [SR] Item No.1 Mr. Shatadru Chakraborty and Mr. Ramendu Agarwal, learned advocates appear for the Administration. Mr.KMB Jayapal, learned advocate for the opposite party is present.

The revisional application under Article 227 of the Constitution of India filed by Collector Land Acquisition (ADM), Andaman and Nicobar Islands, Port Blair assailing order dated 22.10.2021 passed by learned Additional District Judge, Port Blair in L.A.Case No.7 of 2003 is taken up for consideration.

This application has been filed by the petitioner being aggrieved with impugned order dated 22.10.2021 whereby learned Additional District Judge has rejected the application filed by Collector Land Acquisition under Order 18 Rule 17 of C.P.C praying for further cross-examination of PW-1 on recall.

It is submitted that the Collector Land Acquisition had passed an Award No.5-39/LA/ADM/2002 on 26.09.2002 in connection with which a dispute was raised by the respondent as a result the Collector Land Acquisition, Port Blair made a reference of the Award to learned Court of District Judge, Andaman and Nicobar Islands, under section 18 of Land Acquisition Act and the same was registered as L.A. Case No.7 of 2003. After receipt of notice, the present petitioner appeared before the Court. In the meantime, Central Bureau of Investigation had initiated a proceeding in connection with the acquisition of the said land, and had taken all the original documents for investigation due to which the case had not proceeded further. Several proceedings were also initiated before the Hon'ble Supreme Court and finally the Hon'ble Supreme Court dismissed the matter in the year 2016.

The case was subsequently transferred to the learned Additional District Judge at Port Bair. On 28.06.2021, evidence of the respondent -claimant was closed and the case was fixed for hearing of argument on 05.07.2021. It is the case of the petitioner that opportunity was not given to the present petitioner for adducing evidence. While considering the evidence of PW1, the petitioner discovered several important questions of fact were not put to the witness i.e. PW-1 at the time of cross-examination and an application under Order 18

Rule 17 of C.P.C was filed for recalling PW-1 for further cross-examination.

On considering the application, learned Additional District Judge rejected the application on 22.10.2021 on the ground, inter alia, that the proposed questions in the application under Order 18 Rule 17 of C.P.C filed on behalf of petitioner were matters of record.

Furthermore, the same had no bearing on the ultimate decision of the case. The application was rejected on contest without costs.

On being aggrieved, the petitioner has filed this application praying invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and direct the court below to provide an opportunity to cross-examine PW-1.

Learned advocate for the petitioner fairly submits that the provision under Order 18 Rule 17 of C.P.C would be attracted if the Court suo moto put the question to the witness and that can be done at any stage but there is no provision under which the petitioner would be able to adduce evidence at a later stage. Learned advocate for the petitioner relying upon the judgment of the Hon'ble Supreme Court in the case of K.K.Velusamy vs. N. Palanisamy; (2011) 11 Supreme Court Cases 274, submits that Hon'ble Apex court has observed that, "11. There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further

examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications."

Resting his submission on the above decision, learned advocate submits that an opportunity may be given to the petitioner to recall PW-1 for putting some questions to PW-1 to verify their claims.

Learned advocate for the opposite party strongly opposed the prayer and submits that this is a matter which is pending since 2003 and there has been a considerable delay in disposing of the L.A Case No.7 of 2003. It is further submitted that learned Additional District Judge, Port Blair has rightly rejected the

application as the petitioner filed the application after the evidences are closed.

I have considered the contents of the application and the impugned order and also considered the submissions made by learned advocates for the respective parties.

I do not find any illegality or impropriety in the impugned order passed by learned Additional District Judge while disposing of the application under Order 18 Rule 17 of C.P.C. Therefore, I do not find any merit in the revisional application and same calls for no interference. However, for ends of justice, leave is granted to the petitioner to file an appropriate application before the Court to sort out the matter relating to facts. The petition shall be made within a period of a fortnight and the same should be disposed of within a month. Learned Judge shall thereafter expedite proceeding pending before him. The revisional application is accordingly disposed of.

Let a copy of this order be sent to the court of learned Additional District Judge, A & N Islands, Port Blair for information.

Parties can act on the basis of the server copy of this order.

( Ananda Kumar Mukherjee, J. )