Sarat Chandra Ghosh v. The Secretary Of State For India In Council And Ors.

The Judgment of the Court was as follows:—

Beachcroft, J.:— The first question that arises for our decision in this appeal is one that is not likely often to arise but is of considerable public importance. The question is whether an appeal lies to this Court against an order made by the Judge under sec. 49 of the Land Acquisition Act, I of 1894. The matter arises in this way. The Appellant was the owner of a brick field, a small portion of which has been acquired under the Land Acquisition Act. The owner applied that the whole should be acquired alleging that his brick-field was a manufactory within the meaning of sec. 49 of the Act. The Judge decided against him and the matter has been brought here on appeal. The question is whether an appeal lies against the Judge's order and that depends on the meaning which is to be given to the term “award” in sec. 54 of the Act, which provides that an appeal shall lie to this Court from the award or any part of the award of the Court in any proceedings under the Act.

There is no direct authority of this Court as to whether an appeal does lie against an order under sec. 49. The question was raised in the case of Dal Chand Singhi v. The Secretary of State for India (1). The learned Judges who heard that case remarked that appeals had been entertained against such orders in the Allahabad bad and the Madras Courts and they might also have added in this Court without objection having been taken. But they did not decide the question definitely because they were of opinion that in any event they ought to deal with the matter under sec. 115, C.P.C That case is, therefore, not an authority on the question which we have to decide. On the Respondent's side we have been referred to authorities in the Bombay and the Madras Courts, reported, of the former, in Mulraj Khatav v. Collector of Poona (2), and of the latter, in Giles Seddon v. Deputy Collector of Madras (3).

The term “award” has not been defined in the Act. But, if the sections in which the word occurs are referred to, it is noticeable that in all cases the word is used with reference to compensation in some form or other whether it be the amount of compensation or the disposal of compensation. Our attention has been drawn to other sections of the Act, namely, secs. 30 and 35 where the matter is referred for the “decision” of the Court and to sec. 49 itself where the matter is referred for the “determination” of the Court and it has been argued that the use of these words suggests that decisions under those sections are not awards within the meaning of sec. 54. I do not think any sound conclusion can be drawn from the use of such words as “decision” or “determination” in the sections referred to because it has been held in this Court in the case of Balaram Bhramarater Roy v. Sham Sunder Narendra (4) that an apportionment of compensation under sec. 30 comes within the term “award.” Similarly, in the case of Srimati Trinayani Dasi v. Krishnalal De (5) both in the main case and in the case reported in the footnote [Trinayani v. Krishnalal (6)], it has been held that a decision under sec. 32 of the Act is an “award” within the meaning of sec. 54 and, therefore, an appeal lies in such a case. In these cases, however, the view taken could obviously be supported on the ground that the Orders of the Court dealt with the disposal of the compensation money.

The first formal order to which the term “award” is applied in the Act is that of the Collector under sec. 11 and secs. 26 and 27 provide for the form of award to be made by the Judge. As I have said, in both cases, there is a question of the amount of compensation or of the disposal of compensation. But, on a reference under sec. 49 of the Act, the point which has to be decided by the Court is a preliminary point and it has to be decided before any of the matters into which the Collector has to enquire for the purpose of making his award under sec. 11 can be investigated. It seems to me that the decision of a preliminary question like this can in no sense be termed an award within the meaning of sec. 54.

It was strongly urged for the Appellants that parties would suffer great hardship if an appeal were not allowed against orders of the Court on reference under sec. 49. I am not at all impressed by this argument. If the statute does not give a right of appeal, there is an end of the matter. It is possible the right of appeal was not given advisedly, for a question under sec. 49 is essentially one for speedy disposal and further, if the land taken is reasonably required for the full and unimpaired use of house, manufactory or building, the owner would be entitled to substantial compensation for severance. I am of opinion that no appeal lies and that we ought to dismiss the appeal with costs, five gold mohurs to be paid only to the Secretary of State for India.

A Rule was also obtained in this connection, in case it was held that no appeal lay. We can only interfere in our revisional jurisdiction under sec. 115, C.P.C, if the learned Judge acted without jurisdiction. The question of jurisdiction is raised in this way. It is said that after the party had applied for a reference under sec. 49 of the Land Acquisition Act, he put in a petition before the Collector stating that possession had been taken of the whole of the land and asking for the reference to be withdrawn. The Collector had meanwhile made the reference under sec. 49. It is argued, and the question also appears to have been raised before the Judge, that in view of the fact that possession of all the lands had been taken, the learned Judge had no jurisdiction to deal with the question under sec. 49. It may be mentioned here that on behalf of the Secretary of State it is denied that possession was taken of anything more than 2½ bighas. Now, it is quite clear that, if the parties were at one as to the fact of the whole land having been acquired or as to the intention of acquiring the whole land, there would be no proceedings under sec. 49. The reference was made on the footing that it was not intended to acquire the whole and the Judge was bound to deal with it on that footing. The learned Judge has come to the conclusion that the portion comprising 2½ bighas could be acquired apart from the rest of the land taking the view that the whole was not a manufactory. Whether the learned Judge made a mistake of fact or whether he made a mistake of law is immaterial as under sec. 115, C.P.C, we can only interfere in a case of improper exercise of jurisdiction. That being so, the Rule must be discharged with costs, one gold mohur, payable only to the Secretary of State.

Greaves, J.:— I agree.

S.C.M

Appeal dismissed;

Rule discharged.