DEEP CHAND Vs. LAND ACQUISITION

JUDGEMENT

(1.) THE appeal by special leave arises from the order of the Division Bench of Madhya Pradesh High Court dated July 30, 1974 in which it was held that an order passed by the Civil Court on reference under S. 49 (1) of the Land Acquisition Act 1 of 1894 (for short 'the Act') is not a decree and, therefore, an appeal would not lie therefrom under S. 96 of C.P.C.

(2.) THE facts lie in a short compass. Notification under S. 4 (1) and declaration under S. 6, of the Act were published in the State Gazette acquiring land measuring 2 acres 46 cents (approximately) on Biaora village in Rajgarh District. The appellant had objected under S. 49 (1) of the Act to the acquisition, contending that the entire land including his factory and office building should be acquired, without which the Act should not be put in operation. Thereon, reference under S. 49 (1) was made to the Civil Court which by order dated April 29, 1969 held that the land proposed to be acquired did not form an integral part of appellant's factory and office buildings and answered the reference accordingly. The appellants carried the matter in appeal to the High Court. In the High Court, when an objection was raised on behalf of the State, that the order of the Civil Court is not a decree and as such it is not appealable obviously under S. 96 of C.P.C., it upheld the objection and dismissed the appeal as not maintainable.

(3.) THE contention of Sri P.S. Poti, learned senior counsel for the appellant is that S. 49 (1) of the Act confers a substantive right on a party to object to acquisition of only a part of any house, manufactory or other building. On such objection being raised, when a reference under S. 49 (1) second proviso was made to a civil Court, which it would decide a dispute in its ordinary civil jurisdiction. It is an adjudication of the right of the owner, who objects to the continuance of the proceeding under the Act in relation to part of his house, manufactory brother building. It has all the trappings or characteristis of a final adjudication between the appellant and the Land Acquisition Officer and that, therefore, it is a decree within the meaning of S. 2 (2) of C.P.C. What is provided for under S. 49 (b) is right of the owner to ask for acquisition of the whole property if it is not proposed for acquisition; and where the question whether the property left out of acquisition is part of their property, has to be adjudicated by Court, it is an adjudication on an issue relating to the question whether the property is a part of the building or not. When it is finally decided, it becomes conclusive between the parties and binds them. Therefore it has all the trappings or characteristics of a decree. He contended that apart from S. 49 (1) reference, similar right arises under Ss. 18 and 30 of the act. In support thereof, he placed reliance on Secretary of State v. R. Narayanaswami Chettiar and Ors. [AIR 1932 Madras 55] and Kali Prasad v. Govt. of Bihar [AIR 1945 Patna 461]. When the same decisions have been cited, the Division Bench dissented from the ratio in those cases holding that: