Patna High Court
Suraj Narain Yadav vs Fuleshwar Yadav on 3 January, 1987
Equivalent citations: 1988(36)BLJR504
Author: B.N. Agrawal
Bench: B.N. Agrawal
JUDGMENT B.N. Agrawal, J.
1. This appeal arises out of the judgment and decree passed by the learned Subordinate Judge (Land Acquisition Judge) in a reference under Section 30 of the Land Acquisition Act (hereinafter referred to as 'the Act'). The relevant facts for the purpose of disposal of this appeal are that in a land acquisition case a joint award was prepared in the name of the appellant and the respondent. The respondent objected to the award and claimed that he alone is entitled to receive the compensation as he is the exclusive owner of the land acquired. Therefore, at his instance a reference was made under Section 30 of the Act.
2. The learned Subordinate Judge exercising the powers as the Land Acquisition Judge under the provisions of the Act decided the reference under Section 30 of the Act and held that the respondent was entitled to receive the entire amount of compensation money and a decree was passed accordingly. Against 'the aforesaid adjudication the present appeal has been preferred before this Court in which the stamp reporter has raised objection that the appeal is not maintainable before this Court as it arises out of a decision passed in a reference under Section 30 of the Act and the valuation of the original proceeding as well as the appeal being Rs. 197.80 only it shall lie to the court of District Judge. Hence, the matter has come up for consideration as to whether this appeal is maintainable before this Court or not.
3. Learned counsel appearing on behalf of the appellant in support of the appeal contended that the appeal is maintainable before this Court on the basis of the Full Bench decision of the Kerala High Court in P. D. Dewaswom v. U. Pylee . I have been taken through the judgment of the Full Bench and I find that in that case it was laid down that an appeal shall lie to the High Court against the decision passed in a reference under Section 30 of the Act irrespective of valuation. According to me, the Kerala decision is entirely distinguishable as it was so held therein because of the provision of Section 12 of the Kerala Civil Courts Act which lays down that if an appeal is allowed by any law from a decree or order of a district court or Subordinate Judge's court in any proceeding other than a suit, appeal shall lie to the High Court. In Bihar, the law corresponding to Kerala Civil Courts Act is Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), hereinafter referred to as 'the Bihar Civil Courts Act', in which there is no such provision like Section 12 of the Kerala Civil Courts Act. Therefore, the law laid down in the Kerala Full Bench judgment is of no avail to the appellant in deciding the question of maintainability of this appeal.
4. Learned counsel for the appellant has placed before me the provisions of Sections 18, 30, 53, 54 and other relevant provisions of the Act. I find that according to Privy Council the Act contemplates two separate procedures. One is that which is necessary for fixing the amount of compensation and the same is described as an award against which an appeal has been provided under Section 54 of the Act to this Court irrespective of valuation. Another procedure contemplated under the Act is to get the rights of the parties in the compensation money decided in case there any dispute by referring the matter to the Civil Court and if on such reference there is an adjudication by the Civil Court, the same shall have the force of decree and appeal against such adjudication would lie as appeal lies against the original decree under Section 96 of the Code of Civil Procedure passed in a suit according to the provisions of the Bihar Civil Courts Act, i.e., if the valuation of the original proceeding is less than 10,000/-, the appeal shall lie to the District Judge against the decision of the Subordinate Judge otherwise the same shall lie to this Court. In my view, the order of adjudication under Section 30 of the Act cannot be said to be an award, but the order of adjudication shall have the effect of a decree and consequently a decree is prepared in such cases. Having gone through the decisions of different Courts I find that barring the Kerala High Court not a single High Court in the country has taken the view that an order of adjudication in a reference under Section 30 of the Act is an award rather all the High Courts have taken the view that such adjudication amounts to a decree and Ss appealable as such.
5. The Courts have followed decision of the Privy Council in the case of Ramchandra v. Ramchandra A.I.R. 1922 P.C. 80, in which the appeal was taken against the adjudication made on a reference under the Act. I may respectfully say that I cannot do better than quoting the relevant portions of the judgment. Lord Buckmaster speaking for the Court laid down the law as follows:
When once the award as to the amount has become final, all questions as to fixing of compensation are then at an end. The duty of the Collector in case of dispute as to the relative rights of the persons, together entitled to the money, is to place the money under the control of the Court, and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be.... The award as constituted by statute is nothing, but an award which states the area of land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information meaning thereby people whose interests are not in dispute but from the moment when the sum has been deposited in Court under Section 31 (2) the functions of the award have ceased and all that is left is a dispute between interested people as to the extent of their interest.
Such dispute forms no part of the award....
6. I find that this matter was considered by a Bench decision of the Madras High Court in the case of Mahalinga v. Theetharappa A.I.R. 1929 Madras 223, in which the appeal was against an adjudication in a reference under Section 30 of the Act. In that case the memorandum of appeal was directed to be returned for presentation in a proper court as it was held that the same was not maintainable under Section 54 of the Act. The relevant passage from the judgment is quoted below:
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 does lie under any other provision of law....
When there is a litigation in Court in which the civil rights of parties are determined, such litigation, though not called a suit, yet is a civil proceeding and as the Civil Procedure Code is made applicable to such proceedings unless the right of appeal given under the Civil Procedure Code is taken away expressly it cannot be held that the right of appeal does not exist.
Another argument in favour of the appellant is that the term decree is applicable to the decision of the Court on the rights of the contending 96, Civil Procedure Code...
In this case the Subordinate Judge has decided that the amount is payable only to the respondent and not to the appellants. The appellants' claim to a portion of the award is a civil right and the Subordinate Judge has given a decision affecting their right. Such a decision is a decree within the meaning of Section 2, Clause (2), Civil Procedure Code. If it is a decree, then an appeal lies under Section 96, Civil Procedure Code.
Apart from the question whether the decision of the Subordinate Judge amounts to a decree or not, when proceedings are before a Civil Court such proceedings are governed by the usual procedure applicable to such Court. Reference under Section 30 are to the Court and there fore, the right of appeal given by Section 96, Civil Procedure Code, unless expressly taken away, would attach to them and Section 53, which makes the Civil Procedure Code applicable to proceedings before Courts does not take away the right under the Civil Procedure Code.
7. The aforesaid decision has been followed by Madras High Court in its subsequent Bench decision in the case of Loomchand v. Revenue Divisional Officer, Trichy , in which Ismail, J. with whom Natarajan, J. (as he then was since elevated to the Bench of Supreme Court) laid down that in such circumstances the appeal is not maintainable under Section 54 of the Land Acquisition Act against the adjudication in a reference under Section 30 of the Act.
8. The same view has been expressed by a Bench of the Mysore High Court in its judgment in the case of Hanumanthappa v. K. Sivalingappa A.I.R. 1960 Mys. 139, in which Hegde, J. who was later elevated to the Supreme Court Bench laid down the law as follows:
The High Courts in India have consistently taken the view that a decision under Section 30 of the Land Acquisition Act, is a 'decree' and as such the aggrieved party has a right of appeal.... It was so held in Chikkanna Chettiar v. V.S. Perumal Chettiar A.I.R. 1940 Mad. 474 (F.B.), which was a case arising under Section 30 of the Land Acquisition Act. The Full Bench held that :
The Subordinate Judge who is appointed under Section 3 (d) of the Act to decide a dispute with regard to the allocation of compensation money does not constitute a Court of record, but admittedly he does constitute a Civil Court. Hence an appeal lies from the decision of a Subordinate Judge appointed by the Provincial Government under Section 3 (d) to decide a dispute referred by the Collector under Section 30 of the Act.
9. The same view has been expressed by the Bombay High Court in its Bench decision in the case of Raghunathdas v. District Superintendent of Police A.I.R. 1933 Bom. 187. Gujarat High Court in its Division Bench judgment in the case of Bai Lalita v. Shardaben A.I.R. 1970 Guj. 37, and Andhra Pradesh High Court in its decision in Dy. Director of Agriculture v. S. Ramanadhan , have also laid down that no appeal lies under Section 54 of the Act against an adjudication on a reference under Section 30 of the Act as the same is not an award and appeal lies against the said adjudication as appeal lies against the decree.
10. From the aforesaid reported decisions it becomes clear that the order of adjudication in a reference under Section 30 of the Act does not tantamount to an award and. therefore, is not appealable under Section 54 of the Act, rather the same amounts to a decree and is appealable as such according to the valuation of the subject matter of dispute The aforesaid view of mine is reinforced by a decision of the Division Bench of this Court in Kali Prasad v. Government of Bihar A.I.R. 1945 Pat. 461, in which their Lordships were dealing with the question of maintainability of the appeal arising out of a proceeding in a reference under Section 49 of the Act and held that the order of the court an a reference to it under Section 49 is a decree and appealable as such. Though this decision is not under Section 30 of the Act but the principle laid down therein shall apply to the facts of the case in hand The view which J have taken is further reinforced by observations in another Bench decision of this Court in Purni Devi v. Shibu Mahton ), in which the appeal was preferred before this Court against an adjudication by the court below in a reference under Section 18 of the Act. In that case Mr. S. K, Mazuradar, learned counsel appearing on behalf of the respondents raised a preliminary objection that the appeal had arisen out of a decision passed in a reference under Section 30 of the Act and not under Section 18 of the Act and the valuation being less than Rs. 10,000/- the appeal was maintainable before the District Judge as the adjudication was by the Subordinate Judge. Their Lordships repelled the contention by observing as follows:
In my opinion, the contention of Mr. Mazumdar cannot be accepted, There is no material on the record to show that the Collector had made reference under Section 30 of the Act; on the contrary, from the record it appears that the reference was made under Section 18 of the Act.... In that view of the matter the appeal against the judgment and decree passed on the reference made under Section 18 clearly lies to this Court under Section 54 of the Act.
11. Thus on the basis of analysis of the law in the aforesaid reported decisions I hold that this appeal which admittedly arises out of an adjudication on reference under Section 30 of the Act is not maintainable before this Court under Section 54 of the Act as the same is not an award within the meaning of the said provision. In my view such adjudication amounts to a decree and is appealable as such. Since the valuation of the original proceeding was less than Rs. 10,000/- and the case was tried by a Subordinate Judge, the appeal shall lie to the District Judge. I, therefore, direct that the memorandum of appeal be returned to the counsel appearing on behalf of the appellant after making necessary endorsements thereon for presentation in a proper court. It will be open to the appellant to file a petition before the appellate court under Sections 5 and 14 of the Limitation Act and in case such an application is filed, the appellate court shall consider the same liberally and dispose it of in accordance with law after taking into consideration that the appellant was bona fide prosecuting the appeal before this Court. In the circumstances of the case there shall be no order as to cost of this appeal.