CHUNILAL VIRCHAND Vs. AHMEDABAD MUNICIPALITY

JUDGEMENT

(1.) The preliminary question arising in this case is, whether there is an appeal from the decision of a District Court under Clause 3 of Section 160 of the Bombay District Municipal Act (Bombay Act III of 1901).

(2.) That section provides a remedy for the determination of the amount of compensation, to which a person becomes entitled under Clause 3 of Section 92 of the Act, by reason of his land forming part of a public street and becoming vested in the Municipality in virtue of the last portion of the first clause of that section. Both the right to compensation and the remedy for the determination and apportionment of its amount are given by the Act itself; so the right must be asserted and the remedy pursued only in the manner and upon the conditions prescribed by the Act. This is on the well-known rule of law that, where a Statute creates a right not existing at common law and prescribes a particular remedy for its enforcement, then that remedy alone must be followed: per Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 C.B.N.S. 336.

(3.) The question then is, whether Section 160 of the Bombay District Municipal Act, which constitutes the District Court the tribunal for the determination of the amount of compensation, gives a remedy by way of appeal from that Court s order made under Clause 3 of that section. If that section does not give the right, it is admitted that there is no other section in the Act which gives it. A right to appeal cannot be assumed " in every matter which comes under the consideration of a Judge ; such right must be given by Statute or by some authority equivalent to a Statute: " Meenakshi Naidoo v. Subramaniya Sastri (1887) L.R. 141. A. 160, 165. In terms Section 160 does not provide an appeal. Nor can it be said that it is provided by necessary implication. Clause 1 of the section directs that the amount of compensation shall be determined in the first instance by a panchayet appointed by the parties. Clause 2 provides that if they fail to appoint, the District Judge shall make the appointment at the instance of either party. It is not, and can hardly be, contended that where a panchayet, appointed under either of the said clauses, has determined the amount of compensation, its award can be questioned by way of appeal to a Court of law. Clause 3 of the same section provides that if the panchayet appointed under either Clause (1) or Clause (2) fails to give a decision within the period fixed in the clause, the District Court shall determine the amount on application by either party. It will thus be seen that the Court in question comes in as a substitute for the panchayet where adjudication by the latter has failed. What applies to the latter in the matter of appeal must apply, therefore, to the former, on the principle of the legal maxim "nosctiur a sociis." So far the necessary implication in Section 160 is against a right of appeal.