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United Provinces Government Vs. Azhar Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1945All187
AppellantUnited Provinces Government
RespondentAzhar Ali and anr.
Excerpt:
.....there is clearly at least one substantial point of law at issue, and i, therefore, allow leave to appeal. their lordships do not feel satisfied that they are entitled to take that liberty; but assuming that they may do so, they would at least require to be satisfied that the judges had exercised their judicial discretion upon the matter in deciding whether, in order to comply with section 595(e) and section 600, the case was a fit one for appeal to her majesty in council. now their lordships are not by any means satisfied that the learned judges were either asked, or did direct their minds judicially to that question. when any certificate is granted under that order, it is in their lordships' opinion, of the utmost importance that the certificate should show clearly upon which ground it..........j.1. this is an appeal by the united provinces government against an award of the improvement trust tribunal at cawnpore, dated 24th september 1940, which is embodied in a decree, dated 11th november 1940. the award and the consequent decree were made in a proceeding under the u.p. town improvement act (8 of 1919). the improvement trust, cawnpore, prepared an improvement scheme and published a notice thereof on 10th january 1920, as required by section 36, u.p. town improvement act. the improvement scheme was called the factory areas scheme no. l. the notice related to a portion of a plot no. 466 situated in juhi in the suburbs of cawnpore. the total area of this portion was 2 bighas, 18 biswas and 4 biswansis. this land belonged at the date of the notice to one rani kunwar. the.....
Judgment:

Mulla, J.

1. This is an appeal by the United Provinces Government against an award of the Improvement Trust Tribunal at Cawnpore, dated 24th September 1940, which is embodied in a decree, dated 11th November 1940. The award and the consequent decree were made in a proceeding under the U.P. Town Improvement Act (8 of 1919). The Improvement Trust, Cawnpore, prepared an improvement scheme and published a notice thereof on 10th January 1920, as required by Section 36, U.P. Town Improvement Act. The improvement scheme was called the Factory Areas Scheme No. l. The notice related to a portion of a plot No. 466 situated in Juhi in the suburbs of Cawnpore. The total area of this portion was 2 bighas, 18 biswas and 4 biswansis. This land belonged at the date of the notice to one Rani Kunwar. The scheme was sanctioned by the Local Government and a notification announcing that fact was issued on 18th January 1921, as required by Section 42, U.P. Town Improvement Act. Subsection (1) of Section 42 provides that when a scheme is sanctioned by the local Government the Improvement Trust shall forthwith proceed to execute the same. In this case, however, no step appears to have been taken by the Improvement Trust, Cawnpore, to execute the scheme until the year 1937. In the meantime on 8lst March 1924, an area of 1 bigha and 10 biswas out of the land which was sought to be acquired for the purposes of the scheme was sold by Rani Kunwar to the two respondents, Azhar Ali and Azhar Ali for a sum of Rs. 2400. It will be noticed that this transaction took place more than four years after the publication of the notice of the scheme under Section 36. By virtue of Section 56, U.P. Town Improvement Act, any proceeding taken under that Act for the purpose of acquiring the land for any scheme framed by the Improvement Trust and sanctioned by the Local Government is governed by the provision of Land Acquisition Act, 1894, with certain modifications which are to be found in the schedule to the U.P. Town Improvement Act. Paragraph 14 of the Schedule has inserted Section 48A in the Land Acquisition Act, 1894, which runs as follows:

48 A (1) If within a period of two years from the date of the publication of the declaration under Section 6 in respect of any land, the Collector has not made an award under Section 11 with respect to such land, the owner of the land shall unless he has been to a material extent responsible for the delay, be entitled to receive compensation for the damage suffered by him in consequence of the delay.

Paragraph 2 of the Schedule renders a notice under Section 36, Town Improvement Act, equivalent to a notification under Sub-section (1) of Section 4, Land Acquisition Act, and places a notification under Section 42, U.P. Town Improvement Act, on the same footing as a declaration under Section 6, Land Acquisition Act. It would thus appear that in view of Section 42 (1), U.P. Town Improvement Act it was the duty of the Improvement Trust to proceed forthwith to execute the scheme which had been notified under Section 36 and under Section 48A (1) the owner of the land Bought to be acquired became entitled to receive compensation for the damage, if any, suffered by him in consequence of the fact that no steps had been taken to acquire the land and to make an award within a period of two years from the date of the publication of the notice under Section 36. As stated above, the proceeding for the acquisition of the land in this case, in pursuance of the notification under Section 36, dated 10th January 1920, was not commenced until the year 1937. The exact date of the commencement of this proceeding does not appear from the record, but it is certain that the Collector made an award under Section 11, Land Acquisition Act, in respect of the land in question on 28th July 1938. The land was described in the village papers as banjar land and the Collector having found that the land was in the same condition even at the date of the proceeding awarded only a sum of Rs. 11-9-5 as compensation for it. He arrived at this result by calculating the rent of the land at 5 annas per acre, as provided by Para. 470 of the Revenue Manual and applying the rule of twenty-five years' purchase for capitalizing the value thereof. This amount of Rs. 11-9-5 was apportioned by the Collector between Rani Kunwar, the original owner of the land, and the two respondents who were the subsequent transferees of a portion of it. A sum of Rs. 5-9-7 was thus awarded to Rani Kunwar and Rs. 5-15-10 to the two respondents. Being dissatisfied with this award, both Rani Kunwar and the two respondents made an application for reference to the Improvement Trust Tribunal under Section 18, Land Acquisition Act. The two applications were treated as two separate suits by the Improvement Trust Tribunal and were separately decided, though the evidence in both suits read as a whole was treated as evidence for the purposes of each suit. The application made by Rani Kunwar was decided by the Improvement Trust Tribunal by its order, dated 2lst September 1940. By that order the Improvement Trust Tribunal awarded a compensation of Rs. 1500 to Rani Kunwar on the ground that the portion of the land in her possession could yield an income of Rs. 50 per annum and it was not 'really a matter of essential importance to decide whether the plaintiff actually enjoyed that income or did not.' The other application made by the two respondents was decided by the Tribunal on 24th September 1940. In this order the Tribunal found on the analogy of the previous case that the respondents were entitled to compensation roughly at a rate of Rs. 1000 per bigha. It was further held in this order that the respondents were also entitled to compensation for damage caused to them by the delay in the acquisition proceeding under Section 48A (1) to which reference has been made above. No compensation on that ground had been claimed by the respondents either in the acquisition proceeding before the Collector or in the course of the proceeding before the Tribunal. The Tribunal, however, found that it was not debarred from applying the provisions of Section 48A in favour of the respondents, even though they had not raised the question of compensation on that ground. For the purpose of arriving at the amount of damage caused to the respondents, the Tribunal decided that they were entitled to receive Rs. 900, the difference between the price actually paid by them for the land which they had purchased from Rani Kunwar and the sum of Rs. 1500 which could be awarded to them as compensation on the basis that the land could yield an income of Rs. 50 per annum. The result of the finding of the Tribunal was that the two respondents were awarded a sum of Rs. 2400 in all. Section 58 (d), U.P. Town Improvement Act, provides that '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.' Subsequently, the Legislature passed the U.P. Town Improvement (Appeals) Act, 3 of 1920 and Section 3 of that Act provides for appeals from awards of the Improvement Trust Tribunal with some limitations. Section 3 runs as follows:

3(1) Notwithstanding anything contained in the United Provinces Town Improvement Act, 1919, and subject to the provisions of Sub-section (2), an appeal shall lie to the High Court in any of the following cases, namely : (a) Where the decision is that of the President of the Tribunal sitting alone in pursuance of Clause (b) of Section 64 of the said Act; (b) Where the decision is that of the Tribunal, and (i) the President of the Tribunal grants a certificate that the case is a fit one for appeal, or (ii) the High Court grants special leave to appeal:

Provided that the High Court shall not grant such special leave unless the President has refused to grant a certificate under Sub-clause (i) and the amount in dispute is not less than five thousand rupees.(2) An appeal under Clause (b) of Sub-section (1) shall only lie on one or more of the following grounds namely: (i) the decision being contrary to law or to some usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law; (iii) a substantial error or defect in the procedure provided by the said Act which may possibly have produced error or defect in the decision of the case upon the merits.

The Government being dissatisfied with the award made by the Improvement Trust Tribunal in favour of the two respondents, an application was made on its behalf by the Government Pleader of Cawnpore with a prayer for leave to appeal. The application was described as an application under Section 3 (1) (b) of Act 3 of 1920, but the prayer was for leave* to appeal and not that a certificate be granted that the case is a fit one for appeal. The application raised some points of law and the President of the Tribunal passed the following order thereon:

There is clearly at least one substantial point of law at issue, and I, therefore, allow leave to appeal.

Relying upon this order as the certificate contemplated by' Section 3 (1) (b) (i) of Act 3 of 1920, the United Provinces Government has filed the appeal which is now before us for consideration. The learned Advocate-General, who represented the appellant, argued at length and raised some points of law particularly relating to the correct interpretation of para. 10 (3) of the Schedule to the Town Improvement Act which lays down a mandatory rule for the purpose of assessing the market value of the land sought to be acquired and Section 48A, Land Acquisition Act, which governs the question of the compensation to which the owner of the land is entitled in consequence of the delay in the acquisition proceeding, but in view of an objection which has been raised on behalf of the respondents, though at a rather late stage, we find that we cannot enter into the merits of the appeal. The objection is that there is no valid foundation for the appeal inasmuch as there is no valid certificate granted by the President of the Tribunal as required by Section 3 (1) (b) (i) of Act 3 of 1920. This objection must be considered before we can enter into the merits of the appeal, because it strikes at the very root of the appeal and assails the jurisdiction of this Court to entertain the appeal at all. The argument on behalf of the respondents is that the order passed by the President of the Tribunal on the application made by the Government Pleader of Cawnpore, which has been referred to above, does not fulfil the essential requirements of the certificate which has been contemplated by Section 3 (1) (b) (i) of Act 3 of i920. Reliance is placed in support of this contention on a decision of a Bench of this Court in 1936 Secretary of State v. Zahid Husain : AIR1936All460 . That decision rests upon two rulings of their Lordships of the Privy Council, one in Radha Krishn Das v. Rai Krishni Chand ('01) 23 All. 415 and the other in Radhakrishna Aiyar' v. Swaminatha Aiyar ('21) 8 A.I.R. 1921 P.C. 25. In the two cases before them their Lordships of the Privy Council had to deal with certificates granted by High Courts in India for leave to appeal to His Majesty in Council under Sections 109 and 110 of the present Civil Procedure Code and under Sections 595 and 600 of the old Civil Procedure Code. In the earlier case in 23 ALL. 4152 a Bench of, this Court had passed an order directing that a certificate should be issued that the case was a fit one for appeal to Her Majesty in Council and on the basis of that order a certificate granting leave was issued in the following terms:

The Court having had before it an application for leave to appeal to Her Imperial Majesty the Queen in Her Privy Council, presented on behalf of the appellant aforesaid, it is certified, that though the valuation of the case is below Rs. 10,000, yet, as regards the value and nature of the case, it fulfils the requirements of Section 596 of Act 14 of 1882.

Their Lordships first observed in dealing with the case that the document which they were bound to consider and act upon was the certificate and not the order for the certificate and unless the certificate upon which the leave to appeal was based was in such a form as to justify that leave they ought to hold that leave had not properly been given. Their Lordships then proceeded to consider the certificate and noticed that there seemed to be a prevailing impression in the High Court that the mere existence of a substantial question of law was sufficient to give the Court jurisdiction to give leave to appeal to Her Majesty in Council. Lastly, after rejecting an argument advanced before them that they should disregard the language of the certificate and should look at the order directing the certificate to be made, their Lordships observed as follows:

Their Lordships do not feel satisfied that they are entitled to take that liberty; but assuming that they may do so, they would at least require to be satisfied that the Judges had exercised their judicial discretion upon the matter in deciding whether, in order to comply with Section 595(e) and Section 600, the case was a fit one for appeal to Her Majesty in Council. Now their Lordships are not by any means satisfied that the learned Judges were either asked, or did direct their minds judicially to that question. The petition asks, as has already been said, that the Court should grant the certificate under Section 596, treating it as part of the ordinary ministerial jurisdiction of the Court; and no reasons are given, and no grounds are stated by the learned Judges, for holding that, although it did not comply with Section 596, it was still a fit case to appeal to Her Majesty in Council.

In the latter case in A.I.R. 1921 P.C. 25 3 their Lordships of the Privy Council had to consider a certificate given by the Madras High Court in the following terms:

It is hereby certified that, as regards the value of the subject-matter and the nature of the question involved, the case fulfils the requirements of Sections 109 and 110, Civil P.C., and that the case is a fit one for appeal to His Majesty in Council.

With regard to a certificate given in these terms their Lordships observed as follows:

When any certificate is granted under that order, it is in their Lordships' opinion, of the utmost importance that the certificate should show clearly upon which ground it is based, and they regret to find that the certificate in this case is at least ambiguous.

2. After setting out the terms of the certificate, their Lordships proceeded to observe as follows:

There is no indication in the certificate of what nature the question is that it is thought was involved in the hearing of this appeal, nor is there anything to show that the discretion conferred by Section 109 (c) was invoked or was exercised. Their Lordships think it should be brought to the attention of the Indian Courts that these certificates are. of great consequence, that they seriously affect the rights of litigant parties and that they ought to be given in such a form that it is impossible to mistake their meaning upon their face.

We are clearly of the opinion that the principles laid down by their Lordships of the Privy Council in these two cases apply with full force to the case before us in which we have to consider: Whether the certificate granted by the President of the Tribunal was a certificate in the form required by Section 3 (1) (b) (i) of Act 3 of 1920? The same view was taken in 1936 A. L. J. 251 to which reference has been made above. Applying the principles laid down by their Lordships of the Privy Council in dealing with certificates of fitness for appeal to the case before us, we find that the objection raised on behalf of the respondents must be allowed to prevail. It has already been noticed that in the application made by the Government Pleader of Cawnpore there was no prayer for the grant of a certificate of fitness. The President of the Tribunal could not be asked to give leave to appeal. He could only issue a certificate that the case was a fit one for appeal. We have quoted the order passed by the President of the Tribunal in this case in extenso and we do not feel satisfied upon a consideration of that order that it was ever brought to his notice that the question with which he was concerned was whether the case was a fit one for appeal and that having applied his mind to that question he did in fact arrive at the conclusion that a certificate should be granted. All that appears from the order passed by him is that he thought that at least one substantial point of law was involved in the case. He has not even indicated what that point of law was and he appears to have assumed that in any case in which a substantial point of law is involved the petitioner should be given leave to appeal. The mere fact that a case involves some substantial point of law does not necessarily lead to the conclusion that the case is a fit one for appeal. The question of the case being a fit one for appeal must be specifically considered by the President of the Tribunal and the certificate granted by him must clearly indicate on the face of it that he has considered that question and has arrived at the result that the case is a fit one for appeal. These essential requirements are totally wanting in the vague order passed by the President of the Tribunal in the present case upon which the appeal has been founded. We must, therefore, hold that there is no valid certificate in this case as required by the law and consequently no valid foundation for the appeal. The result, therefore, is that this appeal fails and is hereby dismissed with costs.


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