STATE OF KERALA Vs. KUNHAMMED KOYA HAJI

JUDGEMENT

(1.) 5656 square feet of land from T. S. 211 of the Kozhikode Municipality were acquired for the construction of a bus-stand. At the time of acquisition there were 12 buildings in the acquired property bearing door Nos. 1227 to 1238. It is agreed that these buildings were constructed by the kanam-tenants. The Notification under S. 4 (1)of the Land Acquisition Act was on 24121952. The jenmi of the property tholappurath Balalakshmi Amma and kanam tenants owning the buildings bearing nos. 1229 and 1231 to 1234 and the building bearing door No. 1235 filed applications for reference under S. 18 of the Land Acquisition Act The application filed by the jenmi for reference was numbered as LAOP. 113 of 1955. The learned Subordinate Judge of Kozhikode in the said O. P. enhanced the land value to Rs. 1000 per cent. The kanom tenants were not made parties to LAOP. 113 of 1955. A. S. No. 724 of 1963 is filed by the State against the award passed in laop. 113 of 1955.

(2.) THE application for reference filed by the kanom tenant who is the owner of buildings bearing door Nos. 1229 and 1231 to 1234 was numbered as LAOP. 109 of 1955. THE learned Subordinate Judge awarded Rs. 54225 towards the value of the buildings by capitalising the 9 months' rent at 25 times. A. S. 38 of 1964 is filed by the State against the said award.

(3.) BUT the learned Advocate General contended that the review petition was incompetent and the proceedings based upon the same are void and the variation of the award under appeal is without jurisdiction and has to be ignored by this Court and therefore the appeal can be prosecuted on the merits. The submission of the learned Advocate General was based upon the absence of any provision in the Land Acquisition Act empowering a court to review any award and also because of the wording of 0. 47, R. 1, CPC. In the case before us we are concerned with the Land Acquisition Act I of 1894. It was argued by the Advocate General that the right of review is not a procedural one and has to be expressly conferred by the statute S. 53 of the Land Acquisition act is in the following terms: "save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure (14 of 1882) shall apply to all proceedings before the Court under this act. " The expression "court" defined in S. 3 (d) of the Act reads thus: "the expression 'court' means a principal Civil court of original jurisdiction unless the appropriate Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this act. " It is admitted that the Court which passed the award appealed against is a Court as defined in S. 3 (d) of the Land Acquisition Act. In view of S. 53 the provisions of 0. 47. R. 1, CPC. must apply to proceedings before a Land Acquisition Judge. There is no provision in the Land Acquisition act which is in any way inconsistent with the provisions of 0. 47, R. 1 of the cpc. The learned Advocate General would contend that in view of S. 54 of the land Acquisition Act which expressly provides for appeals against the awards passed by the land acquisition Court and also against the decrees passed by the high Court in appeals against such awards, if a right of review was intended it would have been expressly conferred by the statute. Though this plea is attractive we are unable to entertain the same. The learned Advocate General relied on the decision in mulambath Kunhammad v. Parakkat Kathiri Kutti, 31 MLJ. 827 where Srinivasa aiyangar, J. observed: "turning to the language of S. 53, the provisions of the Code of Civil Procedure which are limited by the words "proceedings under the Act" an I before the "court" which means the Court of the Judicial Officer specially appointed to whom references are made under one or other of the sections of the Act. Those words would exclude the provisions of the Code relating to appeals from the award as they are not proceedings before the Court and I think the provisions relating to review are equally inapplicable for as soon as a determination of the matters referred to the Court is arrived at by that Court and the award is made, all proceedings under the Act'before the court' is at an end. "