1. This was a reference for the apportionment of the sum of Rs. 7,142-14-6 awarded as compensation by the Special Collector in respect of a house acquired by the Bombay Improvement Trust.
2. The facts so far as they are material for this judgment are that one Ganu had three sons, Bhiva, Gangaram and Narayan. Gangaram was the step-brother to Bhiva and Narayan. The house in question was bought in 1869 for Rs. 700, the conveyance (Exhibit 1) being in the name of Bhiva who was then about 19 years old and was working as a printer for about 30 rupees a month. Gangaram was about two years the junior to Bhiva and two years senior to Narayan; and Narayan at the time of the purchase was about fifteen years of age working in a liquorshop.
3. The Tribunal of Appeal held that the purchase money must have come from the father Ganu, and (after making some necessary deductions immaterial for this case) that the balance available for apportionment amongst these three persons was Rs. 5017-10-6, and they apportioned that sum between Gangaram and the descendants of Bhiva and Narayan in three equal parts respectively.
4. After the case had been argued by the appellant's counsel Mr. Jayakar at length, the question was raised whether this apportionment by the Tribunal of Appeal would oust the jurisdiction of the High Court in the matter. The point was raised by ground No. 18 of the grounds of appeal which is: ' The Tribunal ought to have directed the parties to a regular suit, having regard to all the circumstances.' This point involves a consideration of the position of the Tribunal of Appeal in such cases. But, as has been said, the point was not touched upon till the argument for the appellant was nearly concluded.
5. The Court of Tribunal of Appeal is appointed under Section 48, Clause (3), of the City of Bombay Improvement Act, IV of 1898. We read Clauses 1, 2, 3 and 10 of that section. In the Act there is no definition of 'Court.' By Section 47 of the said Act certain portions of the Land Acquisition Act, I of 1894, are made to apply to the acquisition of land under Bombay Act IV of 1898. And schedule A of the City of Bombay Improvement Act sets out the portions of the Land Acquisition Act of 1894, regulating the acquisition of lands under the former Act.
6. In Section 3 of the Land Acquisition Act, Clause (d), ' Court ' is defined as meaning a principal Civil Court of original jurisdiction, unless the Local Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act. This clause expressly does not apply to the City of Bombay Improvement Act.
7. From this we infer that a 'Special Judicial Officer' having been appointed by the Bombay Improvement Act he is vested with the power of ' the Court' under the Land Acquisition Act, i.e. a principal Court of Civil Jurisdiction. This mode of legislation is, in our opinion, very much to be deprecated. References to other Acts and the inclusion of them in subsequent Acts only lead to unnecessary confusion.
8. By Schedule A of the Bombay Improvement Act, Part IV of the Land Acquisition Act, which deals with the apportionment of compensation, does apply to the City of Bombay Improvement Act. The material section of Part IV in the Land Acquisition Act is Section 30 which is as follows :-
When the amount of compensation has been settled under u, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.
9. In consequence of the decision of Sir Lawrence Jenkins in Hari Pandurang v. The Secretary of State for India ILR (1903) Bom. 424 that the Tribunal of Appeal was not a Court of Justice and that the limited right of appeal under the City of Bombay Improvement Act did not come within either the extraordinary original, or the appellate and revisional Civil Jurisdiction of the High Court, because the local Legislature had no power to control or affect by their Acts the jurisdiction or procedure of the High Court, as that power rested with the Imperial Parliament and with the Legislative Council of the Governor-General (see Statute 24 & 25 Viet., c. 104), Act XIV of 1904 was passed by the Governor-General in Council, it having been considered advisable to legalize Sub-section 11 of Section 48 of the Bombay Improvement Act by means of a short validating Act on the model of Act XII of 1888. Sections 1 and 2 of that Act enact as follows;-
1. The City of Bombay Improvement Act, 1898, shall so far as regards the appellate jurisdiction conferred upon the High Court by Section 48, Sub-section (11) thereof, be aa valid as it had been passed by the Governor-General of India in Council at a meeting for the purpose of making Laws and Regulations.
2. Subject to the provisions of Section 43, Sub-section (11), of the said Act, the provisions of the Code of Civil Procedure with respect to appeals from original decrees shall, so far as they can be made applicable, apply to appeals under the sub-section, and orders passed therein by the High Court may, on application to the Chief Judge of the Small Cause Court, be executed by him as if they were decrees made by himself.
10. Section 3 prescribes for a period of limitation for such appeals. It will of course be observed that this legislation does not get over the objection raised by Sir Lawrence Jenkins that the power to create Courts in India rests with the Imperial Parliament and with the Legislative Council of the Governor-General (see Statute 24 & 25 Vict., c. 104). But for the purposes of this case it appears to us that sufficient jurisdiction has been conferred upon the Bombay Tribunal of Appeal to confer upon it the power to deal with and decide questions relating to the apportionment of the moneys directed by them to be paid in respect of compensation. Consequently in our opinion this objection fails. Whether any of the claimants in this case would be entitled to sue the other in the High Court and whether the latter would be entitled to plead rest judicata in consequence of the decision of the Tribunal of Appeal on the question of title among the claimants is a question which it is unnecessary for us to consider because it does not arise now : At present we are concerned with the bare question whether for the purposes of apportionment the Tribunal had power to go into and decide the question of title raised by the claimants inter se. That power it has, because without deciding it, it cannot apportion the amount of compensation. That it has power to determine the amount of compensation and apportion it is not denied. If it has the power so far, it follows it has the power to decide the question of title also if that is necessary for the exercise of that power, for the two powers are in that case interdependent, and if the latter is denied, the former becomes ineffective and he Act unworkable. Whether the Legislature has taken away by the Act the remedy by way of a suit is another question not arising now.
11. But in our opinion, it would be highly desirable that these claims to apportionment involving questions of title should be decided by the High Court and not the Tribunal of Appeal, as it is obvious that very complicated questions may arise of law and fact upon which it would be more desirable to have the judgment of the High Court.
12. This appeal will accordingly be heard further.
[The appeal was heard further with the result that the decree passed by the lower Court was varied.]