Narayandas Daga v. Ganpatrao

1. This is an appeal under Cl. 10, Letters Patent, from the order of Grille, J. in Miscellaneous Appeal No. 88 of 1938 setting aside the award of the District Judge in a land acquisition case and in its place substituting a fresh award. This appeal has been filed without leave of the Court. A preliminary objection has been raised on behalf of the respondent (No. 1); that the appeal is not competent in view of Section 54 of the Land Acquisition Act. In I.L.R (1940) Nag. 1411 it was held that when an appeal under Cl. 10, Letters Patent, is preferred from a judgment passed by a single Judge of this High Court in the exercise of his original or first appellate jurisdiction no leave for filing the appeal is necessary. Grille, J. decided the case exercising powers in first appeal, and it follows that no leave to appeal was necessary. The main contention, however, is that based on Section 54 of the Land Acquisition Act, which runs as under:

“Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to His Majesty in Council subject to the provisions contained in Section 110 of the CPC, 1908, and in O. 45 thereof.”

2. With this section has to be read Section 26 of the Land Acquisition Act, wherein an amendment was introduced by Act 19 of 1921. Section 26(1) gives the form of the award, and sub-s. (2), which is an amendment, runs as under: “Every such award shah be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, clause (2), and Section 2, clause (9) respectively of the CPC, 1908.” This S. 26 refers to the award of a civil Court.

3. The contention on behalf of respondent 1 is that under Section 54 of the Land Acquisition Act, an appeal against the decision of the High Court can be filed to His Majesty in Council subject to the provisions contained in Section 110 of the CPC. S. 54 thus speaks of one appeal to the High Court and another to His Majesty in Council if the case fulfilled the conditions laid down in Section 110 of the CPC an appeal under Cl. 10, Letters Patent, therefore is incompetent. Section 54 of the Land Acquisition Act, it is argued, controls the Letters Patent of this High Court. A ??? point was raised before the Lahore High Court. A ??? Bench of that High Court in 3 Lah. 4202 held ??? the word “only” in Section 54 of the Land Acquisition Act, does not restrict the right of appeal but was intended make it clear that the forum of appeal in land ??? cases is always the High Court and that ??? does not affect the right of appeal from the ??? of one Judge to a Division Bench under 10, Letters Patent. The Calcutta High Court in ??? reported in 40 C.W.N 11433 at pp, 1145, 1146 has deed with this view. We respectfully agree with ??? decisions.

4. We cannot accept the contention that the decision a single Judge of this High Court in an appeal ??? an award in a land acquisition case does not ??? to a judgment and decree. Section 26 ??? clearly makes the award of a civil Court a ??? and decree; and if the award of the trial civil ??? is a judgment and decree and if as against such ??? and decree an appeal is permitted by Section 54 of the ??? Acquisition Act, in the High Court it necessarily ??? that the decision of the High Court is also ??? and decree. In fact when speaking of an ??? to be filed to His Majesty in Council from a ??? of the High Court S. 54 uses the word ‘decree’ ??? not ‘award,’ This makes it quite clear that the ??? of this Court is a decree and the reasons for decision a judgment. That being so, an appeal ??? the Letters Patent, Cl. 10, lies from a decision of ??? Judge to a Division Bench of the High Court, ??? argument that inasmuch as S. 54 provides for an ??? from a decree of the High Court to His Majesty Council it ought to be held that the appeal under ???, Letters Patent, is negatived has no force in ??? of the observations of their Lordships of the ??? and Calcutta High Courts. As observed by ??? Lordships of the Lahore High Court, the object ??? amendment was to extend the scope of the right appeal and not to curtail any existing right; S. 111, I.P.C, prohibits an appeal to His Majesty in ??? from the judgment of a single Judge of a High ??? established under the Letters Patent, and the ??? for this prohibition is that an appeal from such ??? is provided for in the Letters Patent, and ??? an aggrieved party should not be permitted to ??? directly to His Majesty in Council, but that he ???, in the first instance, appeal under the Letters ??? to the other Judges of the High Court. We that the appeal is competent and is tenable. The ??? will be heard on merits on a later date.