NARAYANDAS DAGA Vs. GANPATRAO

JUDGEMENT

(1.) THIS is an appeal under Clause 10, Letters Patent, from the order of Grille J. in Miscellaneous Appeal No. 88 of 1938 setting aside the award of the District Judge in a land acquisition case and in its place substituting a fresh award. This appeal has been filed without leave of the Court. A preliminary objection has been raised on behalf of the respondent (No. 1) that the appeal is not competent in view of Section 54, Land Acquisition Act. In Madhukar v. Sati Godawari it was held that when an appeal under Clause 10, Letters Patent, is preferred from a judgment passed by a single Judge of this High Court in the exercise of his original or first appellate jurisdiction no leave for filing the appeal is necessary. Grille J. decided the case exercising powers in first appeal, and it follows that no leave to appeal was necessary. The main contention, however, is that based on Section 54, Land Acquisition Act, which runs as under: Subject to the provisions of the Code of Civil Procedure, 1908, 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 this 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 His Majesty in Council subject to the provisions contained in Section 110, Civil P.C., 1908, and in Order 45 thereof. With this section has to be read Section 26, Land Acquisition Act, wherein an amendment was introduced by Act 19 of 1921. Section 26(1) gives the form of the award, and Sub-section (2), which is an amendment, runs as under: "Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2), and Section 2, Clause (9) respectively, of the Code of Civil Procedure, 1908." This Section 26 refers to the award of a civil Court. The contention on behalf of respondent 1 is that under Section 54, Land Acquisition Act, an appeal against the decision of the High Court can be filed to His Majesty in Council subject to the provisions contained in Section 110, Civil P.C., Section 54 thus speaks of one appeal to the High Court and another to His Majesty in Council if the case fulfilled the conditions laid down in Section 110, Civil P.C., an appeal under Clause 10, Letters Patent, therefore is incompetent. Section 54, Land Acquisition Act, it is argued, controls the Letters Patent of this High Court. Asimilar point was raised before the Lahore High Court. A Division Bench of that High Court in Har Dial v. Secy. of State A.I.R. 1923 Lah. 275 held that the word "only" in Section 54, Land Acquisition Act, does not restrict the right of appeal but was intended to make it clear that the forum of appeal in land acquisition cases is always the High Court and that that section does not affect the right of appeal from the judgment of one. Judge to a Division Bench under Clause 10, Letters Patent. The Calcutta High Court in a case reported in Collector of Dacca v. Golam Ajam has agreed with this view. We respectfully agree with these decisions.

(2.) WE cannot accept the contention that the decision of a single Judge of this High Court in an appeal against an award in a land acquisition case does not amount to a judgment and decreed Section 26 as amended clearly makes the award of a civil Court a judgment and decree; and if the award of the trial civil Court is a judgment and decree and if as against such a judgment and decree an appeal is permitted by Section 54, Land Acquisition Act, in the High Court it necessarily follows that the decision of the High Court is also a judgment and decree. In fact when speaking of an appeal to be filed to His Majesty in Council from a decision of the High Court Section 54 uses the word 'decree' and not 'award.' This makes it quite clear that the decision of this Court is a decree and the reasons for its decision a judgment. That being so, an appeal under the Letters Patent, Clause 10, lies from a decision of a single Judge to a Division Bench of the High Court. The argument that inasmuch as Section 54 provides for an appeal from a decree of the High Court to His Majesty in Council it ought to be held that the appeal under Clause 10, Letters Patent, is negatived has no force in view of the observations of their Lordships of the Lahore and Calcutta High Courts. As observed by their Lordships of the Lahore High Court, the object of the amendment was to extend the scope of the right of appeal and not to curtail any existing right; Section Ill, Civil P.C., prohibits an appeal to His Majesty in Council from the judgment of a single Judge of a High Court established under the Letters Patent, and the reason for this prohibition is that an appeal from such judgment is provided for in the Letters Patent, and that an aggrieved party should not be permitted to appeal directly to His Majesty in Council, but that he should, in the first instance, appeal under the Letters Patent to the other Judges of the High Court. We hold that the appeal is competent and is tenable. The appeal will be heard on merits on a later date.