GENERAL MANAGER Vs. VAGHELA FATUJI KANAJI

JUDGEMENT

(1.) These are applications by the applicant seeking leave to file appeals against the award made by the Reference Court. It is not in dispute before us that the applicant/appellant before us was a party and non-applicant before the Reference Court. On being asked as to why leave is required for filing an appeal, learned counsel for the appellant submitted that in view of the observations made by the Supreme Court in the matter of U.P. Avas Evam Vikas Parishad v. Gyan Devi, reported in [1995] 2 Supreme Court Cases 326, acquiring body, if is aggrieved by the award made by the Reference Court, has to seek leave for filing the appeal.

(2.) Before adverting to the facts and the law laid down by the Supreme Court in the matter of U.P. Avas Evam Vikas Parishad [supra], we would refer to the provisions of the Land Acquisition Act, 1894 and the Code of Civil Procedure. Section 50 of the Land Acquisition Act, 1894 provides that acquisition of land which is at the cost of the local authority or Company, the cost of the acquisition shall be defrayed from or by such fund or Company. Sub-section [2] provides that if any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation. Gujarat Amendment in sub-section (2) records that the words "may appear and adduce evidence" shall be substituted by the words "shall be called upon to appear and adduce evidence, if any." Proviso appended to Section 50, however says that no such local authority or Company shall be entitled to demand a reference under Section 18 of the Land Acquisition Act. Section 54 of the Land Acquisition Act relates to filing of an appeal by a party aggrieved by the judgment and award of the Reference Court. It says that subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), [now to be read as amended by the Act of Code of Civil Procedure] 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 the Acquisition 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 the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil procedure, 1908, and in Order XLIV thereof. From a fair understanding of Section 54 of the Acquisition Act, it would clearly appear that an appeal under Section 54 is subject to the provisions of the Code of Civil Procedure as is applicable to the appeals from original decrees and this right of appeal is conferred on the party notwithstanding anything to the contrary in any enactment for the time being in force. Under Section 54, an appeal shall lie to the High Court only and not to any other Court. The appeal shall be subject to the provisions of the Code of Civil Procedure.

(3.) Section 96 of the Code of Civil Procedure says that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Sub-sections (2), (3) and (4) of Section 96 are not material for the present dispute, therefore, we are not referring to the same. Under Section 96, an appeal against original decree shall be submitted to the Court authorized to hear the appeals. This authorization should be under the Civil Courts Act or under the Rules. In Gujarat, prior to Civil Courts Act, 2005, certain appeals from the judgments of the Civil Judge (Senior Division) were to be filed in the High Court, but now, those are to be heard by the learned District Judge or his assignee. Though there was particular assignment and authorization in favour of a particular Court under Section 96 or under the Scheme of the Civil Courts Act of a particular Court, but in light of Section 54, which provides that notwithstanding anything referred to in any other enactment, an appeal against the judgment and award made by the Reference Court shall lie only to the High Court. Order XLI is the procedural law which further provides that in what manner an appeal is to be filed, what grounds can be taken in an appeal and what procedure is to be adopted by the appellate court.