1960 JTR(All) 230
1961 AIR(All) 509 ; 1961 AllLJ 258 ; 1961 AWR 295 ; 1961 KHC 4107
IN THE HIGH COURT OF ALLAHABAD
R. N. Gurtu and S. N. Dwivedi, JJ.
UTTAR PRADESH GOVERNMENT - Appellant
Versus
RAM SWARUP - Respondents
Supreme Court Appeal 90 Of 1960
Decided On : 12/19/1960
Act
Referred
:CONSTITUTION OF INDIA : Art.133(1)
KANPUR URBAN AREA DEVELOPMENT ACT : S.119
LAND ACQUISITION - KANPUR URBAN AREA DEVELOPMENT ACT, 1945 - SECTIONS 109, 110, 114, 115, 116, 117, 118, 119 - TRIBUNAL'S AWARD - APPEAL TO HIGH COURT - NATURE OF PROCEEDING - WHETHER JUDGMENT, DECREE OR FINAL ORDER - CERTIFICATE OF APPEAL TO SUPREME COURT - WHETHER MAINTAINABLE.
Fact of the Case:
The petitioner's house was acquired under the Raipurwa Scheme framed by the Kanpur Improvement Trust. Dissatisfied with the compensation awarded by the Land Acquisition Officer, the petitioner applied for a reference to the Tribunal. The Tribunal enhanced the compensation, and the petitioner appealed to the High Court, which further increased the compensation.
Finding of the Court:
The High Court held that its appellate decision was not a judgment, decree, or final order within the meaning of Article 133 of the Constitution and that, therefore, a certificate of appeal to the Supreme Court was not maintainable.
Issues: Whether the High Court's appellate decision was a judgment, decree, or final order within the meaning of Article 133 of the Constitution.
Ratio Decidendi: The High Court relied on the provisions of the Kanpur Urban Area Development Act, 1945, which repealed the U.P. Town Improvement Act, 1919, and the U.P. Town Improvement (Appeals) Act, 1920, in its application to Kanpur. The High Court noted that the Tribunal was not a civil court except for purposes of court-fees, that its order was not a decree but an award, and that the proceeding before the Tribunal partook of the nature of an arbitration proceeding. The High Court also noted that the appellate proceeding in the High Court under Section 119 of the repealing Act was prima facie an arbitration proceeding and that there was no provision in the repealing Act for appeal against the order of the High Court.
Final Decision: The High Court dismissed the petition for a certificate of appeal to the Supreme Court.
LAND ACQUISITION - KANPUR URBAN AREA DEVELOPMENT ACT, 1945 - SECTIONS 109, 110, 114, 115, 116, 117, 118, 119 - TRIBUNAL'S AWARD - APPEAL TO HIGH COURT - NATURE OF PROCEEDING - WHETHER JUDGMENT, DECREE OR FINAL ORDER - CERTIFICATE OF APPEAL TO SUPREME COURT - WHETHER MAINTAINABLE.
Fact of the Case:
The petitioner's house was acquired under the Raipurwa Scheme framed by the Kanpur Improvement Trust. Dissatisfied with the compensation awarded by the Land Acquisition Officer, the petitioner applied for a reference to the Tribunal. The Tribunal enhanced the compensation, and the petitioner appealed to the High Court, which further increased the compensation.
Finding of the Court:
The High Court held that its appellate decision was not a judgment, decree, or final order within the meaning of Article 133 of the Constitution and that, therefore, a certificate of appeal to the Supreme Court was not maintainable.
Issues: Whether the High Court's appellate decision was a judgment, decree, or final order within the meaning of Article 133 of the Constitution.
Ratio Decidendi: The High Court relied on the provisions of the Kanpur Urban Area Development Act, 1945, which repealed the U.P. Town Improvement Act, 1919, and the U.P. Town Improvement (Appeals) Act, 1920, in its application to Kanpur. The High Court noted that the Tribunal was not a civil court except for purposes of court-fees, that its order was not a decree but an award, and that the proceeding before the Tribunal partook of the nature of an arbitration proceeding. The High Court also noted that the appellate proceeding in the High Court under Section 119 of the repealing Act was prima facie an arbitration proceeding and that there was no provision in the repealing Act for appeal against the order of the High Court.
Final Decision: The High Court dismissed the petition for a certificate of appeal to the Supreme Court.
J.Swarup, N.P.ASTHANA, SHAMBHU PRASAD
DWIVEDI, J.
( 1 ) BY this petition under Article 133 (1) (a) of the Constitution the petitioner prays for a certificate to appeal to the Supreme Court against our decision in F. A. No. 54 of 1953. The respondent, has raised a preliminary objection that the petition is not maintainable because our decision is neither a judgment, nor a decree nor a final order. It has accordingly become necessary to set out facts in some detail.
( 2 ) PURSUANT to a General Improvement and Street Scheme, called the Raipurwa Scheme, framed by the Kanpur Improvement Trust the respondents house with its compound was acquired. Feeling dissatisfied with the award of the Land Acquisition Officer the respondent applied for a reference to the Tribunal. By its order dated November 22, 1957 the Tribunal enhanced the amount of compensation payable to him. He was still not satisfied and preferred an appeal to this court. We have further increased the amount of compensation. The Tribunal awarded a total amount of Rs. 118429-8, while we have awarded a total amount of Rs. 213360/ -.
( 3 ) THE Raipurwa Scheme was notified under Section 42 of the U. P. Town Improvement Act, 1919 on August 29, 1936. But before a compensation award could be given by the Land acquisition Officer, the 1919 Act was in its application to Kanpur repealed by a new Act, called; the Kanpur Urban Area Development Act (VI of 1945), which came into force on August 11, 1945. The repeal- ing Act further repealed the U. P. Town Improvement (Appeals) Act, 1920 in its application to Kanpur. Clause (a) of Section 4 of the repealing Act dissolved the Kanpur improvement Trust: Clause (d) thereof provided that for the purpose of completing the execution of any scheme sanctioned under the repealed Act the functions of the dissolved Trust shall be discharged by the Kanpur Development Board, a body corporate created under the repealing Act.
( 4 ) SUB-SECTION (2) of Section 108 of the repealing Act also dissolved the Tribunal erected under section 57 of the repealed Act, and Sub-section (1) thereof, in its stead, created a new Tribunal. The reference made at the instance of the respondent was decided by the new Tribunal, and his appeal against the order of the Tribunal was entertained and decided under Section 119 of the repealing Act. Accordingly the question whether our appellate decision is a judgment, decree or final order, will have to be determined on the basis of the provisions of the repealing Act.
( 5 ) WE shall now notice such provisions of the repealing Act as appear to us to have a bearing on the question. Section 109 provides, inter alia, that the Tribunal shall perform the functions of the court with reference to the acquisition of land for the Board under the Land Acquisition Act, 1894. Section 110 deals with the composition of the Tribunal. It shall consist of a Chairman and two assessors. The Chairman is a Judicial Officer of standing and experience, but no qualifications are prescribed for the assessors. Section 116 provides that, if there is any disagreement between the Chairman and assessors On an issue of fact, the opinion of the majority shall prevail; if, however, the disagreement is on a question of law or procedure, the assessors shall be bound by the opinion of the Chairman. Section 115 applies to the proceedings before the Tribunal, the provisions of the C. P. C. , evidence Act and any other Act for the time being in force, in so far as they are not inconsistent with the provisions of the Act. Section 114 declares that the award of the Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act. Section 118 lays down that an order of the Tribunal for payment of money shall be enforced on application, by the Court of Small Causes, Kanpur, as if it were a decree of that court. Sea. 154 declares that the Tribunal shall be deemed to be a civil court for the purposes of Schedule 1 of the Court-fees Act, 1870. Section 117 declares that subject to the provisions of Section 119 the decision of the Tribunal shall be final and shall not be questioned in any court of law. Section 119 provides for an appeal to the High Court against the decision of the Tribunal. It also provides that an order passed by the court shall be enforced on application by the court of Small Causes, Kanpur, as if it were a decree of that court.
( 6 ) CERTAIN inferences inevitably follow from these provisions. The Tribunal is not a civil court except for purposes of court-fees. Its order is not a decree; it is an award. The proceeding before the Tribunal partakes of the nature of an arbitration proceeding, (see Rangoon Botatoung Co. Ltd. v. Collector, Rangoon, ILR 40 Cal 21 (PC), Special officer, Salsette Building Sites v. Dossabhai Bezonji, ILR 37 Bom 506, and Manavikraman Tirumalpad v. Collector of Nilgiris, ilr 41 Mad 943 : (AIR 1919 Mad 626) (FB ). Now, an appeal is a rehearing of the original proceeding, and accordingly the appellate Proceeding shall ordinarily partake of the character of the original proceeding. As the original proceeding in the present case is an arbitration proceeding, the appellate proceeding in this Court under Section 119 is also prima facie an arbitration Proceeding. The authorities already cited also support this inference.
( 7 ) IS there then anything in the repealing Act to establish that the appellate proceeding in this court under Section 119 is not an arbitration proceeding, but a civil proceeding in a civil court? our attention has not been drawn to any such provision. On the contrary, Sub-section (6) of section 119 plainly points out that the appellate order of this Court is not a decree; it shall be enforced by the court of Small Causes, Kanpur, as a decree of that court. This Provision, in our view, suggests that the appellate proceeding remains an arbitration proceeding and that the court does not act as a civil court but as persona designate. The appellate order of this Court is consequently also an award, and it is not in our opinion a judgment, decree or final-order within the meaning of those expressions In Article 133 of the Constitution. There is no provision, in the repealing Act for appeal against the order of this Court. Indeed Section ] 17 declares that subject to appeal to this Court under Section 119 the decision of the Tribunal shall be final and shall not be questioned in any court. The Legislature has intended to give an end to the dispute after the decision on appeal.
( 8 ) IN view of all these considerations we are unable to grant a certificate of appeal to the supreme Court.
( 9 ) WE think we are directly supported in our view by a recent decision of their Lordships of the supreme Court in Hanskumar Kishanchand v. Union of India, 1959 SCR 1177 : (AIR 1958 SC 947 ). In this case certain Property of the appellant was requisitioned by the Government under rule 75a of the Defence of India Rules. The question of compensation was referred to the additional District Judge, Khandwa, under Section 19 (1) (b) of the Defence of India Act. Against his award there was an appeal to the High Court under section 19 (1) (f ). When the Court disposed of the appeal, parties obtained leave to appeal to the Federal Court. At the hearing of the appeal a Preliminary objection, similar to the one before us, was taken before the Supreme Court. Their Lordships were of the view that the original proceeding being an arbitration proceeding, the appellate proceeding was also an arbitration proceeding and that the order of the High Court was neither a judgment nor a decree nor a final order. They accordingly dismissed the appeals as incompetent. Their Lordships said,
"in our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where it is provided by the Statute. "
The decision is clearly against the Petitioner.
( 10 ) WE reject the petition with costs.