Union of India and Another vs Qabool

Falshaw, C.J.

(1) These are 17 petitions (S. C. A. Nos. 51-D to 60-D, 62-D, 63-D, 66-D, 67-D, 68-D, 70-D and 75-D of 1958) filed under Article 133 of the Constitution by the Union of India and the Delhi Improvement Trust for leave to appeal to the Supreme Court against our orders of the 15th of May 1958 by which was dismissed the petitioners'' appeals against awards made by the Tribunal constituted under the U. P. Town Improvement Act of 1919 as extended to Delhi.

(2) The land which was acquired by the Improvements Trust in these cases in situated in the adjoining villages of Shadipur and Khanpur-Raya, the cases regarding the former village being decided by our judgment in R. F. A. 184 of 1951 and those regarding Khanpur-Raya being decided by our judgment in R. F. A. 88 of 1952. In the cases of both villages the Tribunal had increased the amounts awarded by the Collector and had fixed the rate at Rs. 5/- per square yard for all the land. This was based on unchallenged evidence that in the year 1947 land in this area, including some of the land actually acquired in the Shadipur area, had been purchased at the rate of Rs. 5/- per square yard, the relevant date for valuation, i. e., the date of the preliminary notification of acquisition, being the 24th of February 1948.

(3) We have been asked to grant a certificate of fitness in these cases on the ground that the interpretation of the provision in the Act by which the marker value is to be determined on the basis of the use to which the land is put on the relevant date involves a substantial question of law. In dismissing the appeals against the awards of the Tribunal we followed what I think has been the consistent view of this Court, which has been fully expounded in the case of the Sita Ram Gurdas Mal Vs. Collector of Central Excise, New Delhi and Another, to the effect that although the land is still classed as agricultural land, if within a reasonable period from the relevant date there have been no sales of land at the ordinary price of agricultural land, and land has in fact only been purchased in that neighbourhood for development, the market value of the so-called agricultural land in the area must become the value for which such land is being sold. In the circumstances I am not inclined to certify these cases as fit for appeal to the Supreme Court.

(4) Apart from this the objection has been raised that no appeal lies to the Supreme Court against the appellate decisions of this Court regarding awards of the Tribunal. The Tribunal, as I have said, is the creation of the U. P. Town Improvement Act as extended to Delhi and is presided over by a judicial Officer or lawyer of not less than 10 years'' standing assisted by two assessors, one appointed by the State Government and one by the Municipal Board. In Section 58 of that Act it is provided that "(a) the Tribunal shall (except for the purposes of Section 54 of that Act i.e., the Land Acquisition Act of 1894) be deemed to be the Court and the president of the Tribunal shall be deemed to be the Judge under the said Act". and, "(d) the award of the Tribunal shall be deemed to be the award of the Court under the said Land Acquisition Act, 1894, and shall be final". This finality is modified by the provisions of the U. P. Town Improvement (Appeals) Act of 1920, S. 3 of which provides for an appeal against the award of the Tribunal either on a certificate of fitness for appeal to be granted by the President of the Tribunal, or else by a special leave granted by the High Court after the refusal of a certificate by the President.

(5) These provisions are indistinguishable from those of the Calcutta Improvement Act, Bengal Act V of 1911, and it was held by their Lordships of the Privy Council in Secretary of State v. Hindustan Co-operative Insurance Society Ltd. AIR 1931 PC 148 Council from orders of the Calcutta High Court in appeals against the awards of the Tribunal. This case was considered and its principles approved of in Hanskumar Kishanchand Vs. The Union of India (UOI), . In that case both parties had filed appeals in the Federal Court, as it then was against an order of the Nagpur High Court in an appeal against the award of a judicial officer acting as an arbitrator under the Defence of India Act regarding the compensation payable for certain requisitioned property, but on behalf of the Government the maintainability of the appeals was challenged. Sub-section (c) of Section 19(1) of the Defence of India Act provided that an arbitrator in making his award should have regard to the provisions of sub-section (1) of section 23 of the Land Acquisition Act 1894 so far as it could be made applicable, and sub-section (f) provided for an appeal to the High Court against an award of an arbitrator except in cases where the amount thereof did not exceed an amount prescribed by rules to be made by the Central Government. The case law was considered and summed up with approval as follows:

"It is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the CPC or the Letters Patent. Whether it is so or not will depend on whether the proceedings in which it was given came before the Court in its normal civil jurisdiction of de hors it as a personal designata. Where the dispute is referred to the Court for determination by way of arbitration............... or where it comes by way of appeal against what is statedly an award............. than the decision is not a judgment, decree or order under either the CPC or the Letters Patent."

It was held that an appeal to the High Court u/s 19(1)(f) of the Defence of India Act could only be construed as a reference to it as an authority designated, and not as a Court, and the fact that the arbitrator in that case happened to be a District Judge made no difference. The appeals were accordingly held to be incompetent. The alternative plea was also rejected that special leave should be granted because the Federal Court could not have gives the special leave as the order sought to be appealed against was not a judgment decree or order but an award.

(6) The question which requires consideration is whether this principle applies any longer in the light of the words of Article 133(1) of the Constitution

"an appeal shall lie to the Supreme Court from any judgment, decree or final order in a Civil Proceeding of a High Court in the territory of India if the High Court certifies.................."

While I am of the opinion that there can be no longer any difficult about the Supreme Court''s granting special leave in a case of this kind under Article 136 of the Constitution, I am of the opinion that the words ''judgment, decree or final order in a civil proceeding of a High Court, still have the same meaning, and are subject to the same restrictions, as was the case in the days when appeals went to the Privy Council and the Supreme Court (Federal?) Court. I am therefore of the opinion that it is not open to the High Court to grant a certificate under Article 133 for an appeal against the decision of the High Court in an appeal under the U. P. Town Improvement (Appeals) Act of 1920 against the award of a Tribunal constituted under the U. P. Town Improvement Act of 1919 as extended to Delhi, I, would accordingly dismiss the applications, but leave the parties to bear their own costs.

Mehar Singh, J.

(7) I agree.

CF/K.S.B.

(8) Petitions dismissed.