Bhalchandra Mohiniraj Prathak vs. Madhyam Varigye Sarvodaya Sahakari Griha Rachana Sanstha Maryadit

Order - Status 9: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6065 OF 2014 Bhalchandra Mohiniraj Pathak and anr. .. Petitioners Versus Madhyam Varigye Sarvodaya Sahakari Griha Rachana Sanstha Maryadit through Chairman and ors. .. Respondents Mr. S. S. Patwardhan, advocate for petitioner. Mr. Bhadrashetti with S. D. Chawan i/by Rahul Sopanrao Kate for respondent. --- CORAM : SMT. R. P. SONDURBALDOTA DATED : 24th JULY, 2014. --- P.C. : 1). Rule. Rule made returnable forthwith. By consent of the learned advocates, the petition is taken on board for final hearing. 2). The short question that arises for consideration in this petition is whether the correspondence between the Chief Promoter of Society, Madhyam Vargye Sarvodaya Sahakari Griha Rachana Sanstha Maryadit, Pune and the Additional Secretary to Government of Maharashtra, Housing Development and Special Assistance Department, Mantralaya, Mumbai, annexed to the order of exemption under Section 19(1)(v) of the Urban Land (Ceiling and regulation) Act, 1976, can be said to be public document. 3). There is a dispute pending in the Cooperative Court between the petitioner and the respondents in which one of the disputed facts is the total strength of membership of respondent no.1, Society. According to the respondents, the membership is restricted to 11 persons and the petitioners, on the other hand contend that, there are as many as 141 members of the Society. During the course of the trial, the petitioners sought to produce photocopies of the letter dated 30th August, 1989 from the Additional Secretary to Government of Maharashtra, Housing Development and Special Assistance Department, Mantralaya, Mumbai to one Shri G. H. Kulkarni, Chief Promoter of respondent no.1, Society and the reply sent by Mr. Kulkarni to the letter alongwith annexures to the letter, in evidence in support of their claim of the membership of the Society by 141 persons. The production of the photocopies as secondary evidence was objected to by the respondents. The objection was upheld by the trial Court and also the lower appellate Court. It was held by the Courts below that, the petitioners have not established the circumstances prescribed for production of secondary evidence and also that the photocopies cannot be said to be secondary evidence. The petitioners had carried the order to this Court by filing Writ Petition No. 6350 of 2011. By the order dated 23rd August, 2012, this court dismissed the petition without going into its merits, with an observation that, since the orders under challenge in the petition were interlocutory in nature, interest of the justice would be served if the writ petition was disposed off with a clarification that in the event the final order in the dispute is adverse to the petitioners, they can, while challenging the final order, raise appropriate pleas and in particular in regard to the rejection by the trial court and the lower appellate court of leave to lead secondary evidence. The petitioners then carried the orders further to the Apex Court. However, the Apex Court also did not interfere with the order of this court. 4). It appears that thereafter one out of 141 members, died and his son, found certified copies of the two documents described above in the papers maintained by the deceased member. The certified copies have been obtained from the Tahashil Office, Pune, where apparently the same were produced in connection with the land dealing. The petitioners, then filed another application for tendering in evidence, the certified copies as the secondary evidence. The trial Court, allowed the application by its order dated 12th March, 2014. Being aggrieved by the order, the respondents had preferred revision to the Maharashtra State Co-operative Appellate Court, Mumbai Bench at Pune. The Appellate Court allowed the revision by its order dated 19th April, 2014 which order is challenged by the petitioners in the present petition. 5). The reasons set out in the impugned order by the Appellate Court, for allowing the revision, read as follows :- "29. After perusal of documents, which the respondent no.1 and 2 produce on record at Sr. no.1 to 3, it is evidence that, 'these documents are the annexure attached with the order issued by the public officer'. Even though presuming for the sake of argument that, these documents were attached with the order passed by the public officer, such documents cannot be terms as public documents, the provisions of Section 74 and 76 of Evidence Act doesn't apply in the present set of facts. At the most, said document is termed as the part and parcel of the record maintained by the public officer. Thus, doesn't cover within the meaning of the term public document. After perusing these documents, it is also evident that, the certified copies allegedly availed from the Tahasil Office, Pune whereas as per pleadings of the respondent no.1 & 2, the record is maintained by the Housing Development and Special Assistance Department, Mumbai. It was also responsibility of applicant to explain the proper custody, which the applicants, failed. Thus, on merits also this application deserves to be dismissed. So far as the fourth document is concerned, admittedly same is part and parcel of court record, which can be directly referred. So also it is not explained as to why the fourth document needs to be brought on record, and it is not related to subject matter of dispute." 6). Mr. Bhadrashetti, the learned advocate for the respondent, in seeking to justify the impugned order, submits that the documents in question are essentially correspondence by a private individual with the government department. Therefore, the same cannot fall within the domain of public document as defined in Section 74 of The Indian Evidence Act. His second objection is that, certification of the documents ought to be by the same department that received the document and not by any other department of the Government. The third argument advanced by him is, of the bar by the principle analogous to res-judicata to the second application for production of secondary evidence by the petitioner, the first application having already been decided in the earlier round of proceedings mentioned above. The order in respect thereof has reached finality with the dismissal of the Special Leave Petition by the Apex Court. He submits that, the observation by the Co-operative Tribunal, that application is filed solely for the purpose of delaying the trial is justified and he presses for dismissal of the petition. 7). The respondent cannot be allowed to contend that, the second application by the petitioner was barred by, res-judicata, as both the Courts below have negatived the contention and there is no challenge to the finding. The Co-operative Appellate Tribunal at para-23 of the impugned order, has held that the earlier application had been moved under Section 75(a)(b) of The Indian Evidence Act, whereas, the second application is moved under Section 75(e) of The Indian Evidence Act. The two applications being different applications, there was no applicability of principle analogous to res-judicata. 8). The question, therefore, to be considered now is, can the certified copies issued by one department of the Government i.e. Tahasil Office, Pune in respect of the order issued by another office of the Government i.e. Housing Development and Special Assistance Department, Mantralaya, Mumbai alongwith its' annexures, be said to be the public document for the purpose of production in the Court of law. The description of the three documents in question, annexed to the order of exemption, is as follows :- "(a). Letter dated 30/8/1989 issued by Shri. S.V. Yadgikar (Additional Secretary) to Late G.H. Kulkarni. (b). Letter dated 29/9/1989 issued by late G.H. Kulkarni to Housing Development Department. (c). List of Members of Madhaymvargiya Sahakari Griharachna Sanstha Mydt. sent by Late G.H. Kulkarni alongwith his letter dated 29/9/1989." Section 74 of The Indian Evidence Act, which defines the term "public document" reads as under :- "74. Public documents.- The following documents are public documents:- (1) documents forming the acts or records of the acts- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; (2) public records kept [in any State] of private documents." 9). It appears that the Society had earlier filed application under Urban Land (Ceiling and Regulation) Act, 1976 seeking exemption under Section 19(1)(v). The three documents sought to be now produced, relate to the application for exemption. It is the correspondence consisting of a letter received from Housing Development and Special Assistance Department, Mantralaya and reply sent by Chief Promoter, Society to the said Department alongwith the annexure to the letter. The correspondence, therefore, is with a public officer in connection with his office duties. This correspondence is maintained as record for the purpose of grant of exemption under the Urban Land (Ceiling and Regulation) Act, 1976. This record forms the basis of grant of exemption. As such, it will have to be treated as part of the documents forming records of the acts of public officer. Further, as noted by the Appellate Court, the three documents are annexures to the order passed by the public officer. Once a certified copy of order of a public officer passed in connection with his public duty is produced, it cannot be severed from its annexures because the document, then would become incomplete. Therefore, the annexures to the order will also have to be held admissible in evidence only to the extent of their existence. The truth of the contents of the documents needs to be separately established. Mr. Patwardhan, the learned Advocate for the petitioner does not dispute this position. 10). As regards the certification of the documents by the department different from the department with whom the correspondence had taken place, in my view the same should not create any difficulty. The document had apparently been produced before the office of Tahashil, Pune in connection with the very land and the document filed with the Tahashil Office has been certified by that office and given to the petitioner. Therefore, custody of the document has been established for the purpose of issuing certified copies. In any case, this aspect is always subject to cross examination. The petition is hence allowed in terms of prayer clause (a). 11). At the request of the advocate for the respondent, the order is stayed for a period of four weeks. He makes the statement that the respondent shall not proceed with the trial in the dispute pending before the Cooperative Court during the period of four weeks. (SMT. R. P. SONDURBALDOTA, J)