A MARALINGA KUDUMBAN Vs. THEETHARAPPA MUDALIAR

JUDGEMENT

(1.) These appeals arise out of Land Acquisition proceedings in the Tinnevelly District. Some inam lands were acquired under the Land Acquisition Act and the Land Acquisition Officer passed an award and referred to the Civil Court under Section 30 the claims of the contending parties. The inamdar alleges that he is entitled to the land and not to the melvaram only and claims the whole of the award. A number of tenants, alleging that they have occupancy right in the land acquired claimed a portion of the amount awarded as compensation. The Subordinate Judge, Tuticorin, held that the tenants had no occupancy right in the land and that the whole of the amount of compensation should be paid to the inamdar. The tenants have preferred these appeals. The office asked for directions from the Admission Court as regards the amount of Court-fee payable on the memorandum of appeal in each case and as regards the maintainability of the appeals in the High Court, One of us sitting in the Admission Court ordered notice to the Government Pleader and to the respondent and directed that the appeals be posted before a Bench of two Judges as the questions raised were of general importance. Mr. Muthiah Mudaliar who appears for the respondent raises the further point, that no appeal lies against the order of the Subordinate Judge.

(2.) Three questions arise for decision: (1) Does an appeal lie against the order of the Subordinate Judge? (2) If it does, to what Court should the appeal be presented? (3) What is the amount of Court-fee payable on the memorandum of appeal?

(3.) Question (1)-- Section 54 of the Land Acquisition Act of 1894 provides for an appeal to the High Court from the award or any part of the award of the Court in any proceedings under this Act. In Rangoon Botatoung Co., Ltd. V/s. Collector of Rangoon 16 Ind. Cas. 188 : 40 C. 21 : 16 C.W.N. 961 : 12 M.L.T. 195; (1912) M.W.N. 781 : 16 C.L.J. 245 : 23 M.L.J. 276 : 14 Bom. L.R. 833 : 10 A.L.J. 271 : 5 Bur. L.T. 205 : 6 L.B.R. 150 : 39 I.A. 197 (P.C.) their Lordships of the Privy Council held that no appeal lay to His Majesty in Council from a decision of the Chief Court of Lower Burma on a reference to that Court by the Collector of Rangoon in proceedings under the Land Acquisition Act. Lord Macnaghten in delivering the judgment of the Privy Council observes: "A right of appeal from any decision of any tribunal must be given by express enactment, A special and limited appeal is given by the Land Acquisition Act from the award of the Court to the High Court. No further right of appeal is given". The principle of the Privy Council decision is that an award is made by the Land Acquisition Officer as an arbitrator and an appeal would lie against the award as provided by the Act and no further. A party who objects to the award may ask the Land Acquisition officer to make a reference to the Court under Section 18 and the Court may, for sufficient reasons, increase the award, and the amount awarded by the Court becomes the award and an appeal will lie against such award under Section 54. In order to give the right of appeal to the Privy Council, Act XIX of 1921 was passed adding a subsection to Section 26 and amending Section 54 of the Land Acquisition Act of 1894. Clause (2) added to Section 26 says: "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 Sec. 2, Clause (9), respectively of the Civil P. C., 1908". This amendment does not help the appellant as a decision in a reference under Section 30 is not an award within the meaning of Section 54. The decision of a Court as to the rights of the contending parties on a reference under Section 30 cannot be said to be an award under the Act. After the award has been made the Court determines who are entitled to the whole or a portion of the award. As Section 54 is not applicable to the present case we have to see whether an appeal lies under any other provision of law. It is urged by Mr. Muthiah Mudaliar that an appeal is a creature of the Statute and unless the Statute expressly gives it, an appeal would not be competent merely by reason of the provisions of the Civil Procedure Code being followed by the Court in all proceedings on a reference by the Land Acquisition Officer. When the claims of the contending parties are determined by the Court that decision is binding en them and no suit will lie to set it aside. In Bhandi Singh V/s. Ramadhin Roy 10 C.W.N. 991 : 2 C.L.J. 359 some persons who were parties to Laud Acquisition proceedings asked for a reference under Section 18 of the Act. They did not appear at the hearing of the same and it was struck off. It was held that a suit instituted by the same persons in the Civil Court for the apportionment of the compensation money was barred by Secs.102 and 103, Civil Procedure Code of 1882. Mookerjee, J., observes at page 999 Page of 10 C.W.N.--[Ed.]; "the party at whose instance the reference is made under Section 18 is virtually the plaintiff and if the objection relates to the measurement of the land and the amount of the compensation, the Collector is the defendant" and further observes that as these parties were absent it was rightly dismissed. In Ramachandra Rao V/s. Ramachandra Rao 67 Ind. Cas. 406 : 45 M. 320 at p. 329 : 30 M.L.T. 154 : 26 C.W.N. 713, 35 C.L.J. 545 : 16 L.W. 1; (1922) M.W.N. 359 : 20 A.L.J. 684 : 43 M.L.J. 78 : 24 Bom. L.R. 963 : A.I.R. 1922 P.C. 80 : 49 I.A. 129 (P.C.) the Privy Council held that a decision of a Civil Court as to title on a reference to it under the Land Acquisition Act was res judicata in subsequent proceedings. They held that the decision in such cases was not an award and disapproved of the decisions in Trinayani Dassi v. Krishna Lal Dey 6 Ind. Cas. 157 : 17 C.W.N. 935n and Balaram Bhramatar Ray V/s. Sham Sunder Narendra 23 C. 526. Their Lordships observe at page 330 Page of 45 M.--[Ed.]: