COLLECTOR VARANASI Vs. GAURI SHANKER MISRA

JUDGEMENT

(1.) This appeal by the Collector of Varanasi by special leave under Article 136 of the Constitution is directed against the decision dated 11-11-1963 of the High Court of Judicature at Allahabad, in First Appeal No. 60 of 1960 on its file, which in its turn arose from the award made by Shri S. B. Malik, District Judge, Varanasi, in certain land acquisition proceedings under Clause (b) of sub-section (1) of section 19 of the Defence of India Act, 1939 (to be hereinafter referred to as the Act) .

(2.) Before considering the contentions urged on behalf of the parties, it is necessary to set out the salient facts. For the purpose of constructing the Babatpur aerodrome near Varanasi, the Government acquired in the year l946 about 500 acres of land. Compensation in respect of most of the lands acquired was settled by agreement. But in respect of the lands with which we are concerned in this appeal, 48.01 acres in extent, no settlement was arrived at. Therefore, the question of compensation in respect of those lands was referred to the arbitration of Shri S. B. Malik under Cl. (b) of sub-section (1) of Section 19 of the Act. In view of Section 19 (1) (e) , the claimants were entitled to get as compensation the market value of those lands as on the date of acquisition. Before the arbitrator as well as the High Court, the parties were agreed that on the material on the record, the market value in question had to be fixed either on the basis of the sale deeds produced by the claimants or by capitalising the annual profits accruing from those lands. The arbitrator rejected the sale-deeds produced before him He adopted the method of capitalising the annual profits. On the question of annual profits also he rejected the evidence adduced on behalf of the claimants. He determined the same on the basis of the revenue records for Fasli 1355 read with the evidence of the Naib Tehsildar, Jawal Prasad. Aggrieved by the decision of the arbitrator, the claimants went up in appeal to the High Court of Allahabad under Section 19 (1) (f) . The High Court differed from the arbitrator as to the value to be attached to the sale-deeds produced. It opined that the sale deeds produced were reliable and that they evidenced genuine transactions. The High Court fixed the compensation payable on the basis of Exhibit A 42 dated 3-4-1951. The arbitrator had fixed the compensation at Rs. 26454-12-0. The High Court enhanced the same to Rs. 90,446-3-0. It is against that decision that the Collector of Varanasi has filed this appeal after obtaining special leave from this Court under Article 136.

(3.) Shri Goyal, learned counsel for the respondents has raised the preliminary objection that no special leave could have been granted by this Court under Article 136 as the judgment appealed against was neither that of a court nor of a tribunal. According to him, the High Court while acting under Section 19 (1) (f) was a persona designata and not a court or a tribunal. His argument on this question proceeded thus:Sec. 19(1) (b) of the Act empowers the Central Government to appoint as arbitrator a person qualified to be appointed a judge of the High Court; Shri Malik who possessed the required qualifications was appointed by the Central Government to act as an arbitrator, it is true that Shri Malik was District Judge of Varanasi at the time of his appointment, but in law it was not necessary that the person appointed should have been a District Judge, and much less the District Judge of any particular District; therefore, Shri Malik acted as a designated person and not as a Court; hence, the award given by him cannot be considered either as a judgment or as a decree or order; it was merely an award; when the matter was taken up in appeal to the High Court, the proceedings did not cease to be arbitration proceedings; its original character continued even before the High Court, therefore, the decision made by the High Court should also be considered as an award and further the High Court in making that award should be considered as having functioned as an arbitrator. In this case, it is not necessary to go into the question whether the decision of the High Court is a decree, judgment or final order. Even according to Shri Goyal the decision of the High Court is a "determination" as contemplated in Article 136. That position he had to concede in view of the decision of this Court in Engineering Mazdoor Sabh vs. Hind Cycles Ltd., (1963) 1 Suppl. SCR 625 . In support of his contention that the High Court while acting under Section 19 (1) (f) was not functioning as a court he placed strong reliance on the decision of this Court in Hanskumar Kishanchand vs. Union of India, (1959) SCR 1177 . That case dealt with two cross appeals arising from a decision of the Nagpur High Court under Section 19 (1) (f) . Those appeals were brought on the strength of the certificates issued by the High Court on 25-8-49 under Sections 109 and 110 of the Civil Procedure Code. In those cases it was contended that the appeals were not maintainable for two reasons viz., (a) the decision appealed against is neither a decree, judgment or final order and (b) the decision in question was not that of a court. This Court upheld both these contentions. On the second ground taken Venkatarama Aiyar, J., who spoke for the Court, observed thus: