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Najban Bibi and ors. Vs. Gur Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1940All415
AppellantNajban Bibi and ors.
RespondentGur Prasad
Excerpt:
- - if, on the other hand, the decision is one by the tribunal an appeal would lie provided the conditions were satisfied that the president of the tribunal granted a certificate, or that he refused to grant it and the high court granted special leave and also on a condition that the amount in dispute was not less than rupees 5000. that amount would not be satisfied in the case of the present appeal which was only of the value as shown in the memorandum of rs......the tribunal was sitting alone. an appeal would have lain from his decision, but having given his decision an application was made to set it aside and restore the case. the application was by appellant 1 before us that mt. najban bibi alone out of the six appellants. the president rejected that application and it is against that order of rejection that the present appeal is filed. the order of the president rejecting the application for restoration was passed under the u.p. town improvement act, act 8 of 1919, section 64(1)(c) which states as follows:notwithstanding anything contained in the foregoing clause, the decision of all questions of law and procedure shall rest solely with the president of the tribunal.2. he therefore decided this point under sub-section (c). now the right of.....
Judgment:

Bennet, J.

1. This purports to be a first appeal from an order of the Tribunal of the Improvement Trust rejecting an application for restoration. Actually the order is one by the President alone. The President had a proceeding before him under Section 64(1)(b), U.P. Town Improvement Act, Act 8 of 1919, relating to a reference under Section 30, Land Acquisition Act, about the apportionment of compensation among different persons. For this purpose the President of the Tribunal was sitting alone. An appeal would have lain from his decision, but having given his decision an application was made to set it aside and restore the case. The application was by appellant 1 before us that Mt. Najban Bibi alone out of the six appellants. The President rejected that application and it is against that order of rejection that the present appeal is filed. The order of the President rejecting the application for restoration was passed under the U.P. Town Improvement Act, Act 8 of 1919, Section 64(1)(c) which states as follows:

Notwithstanding anything contained in the foregoing clause, the decision of all questions of law and procedure shall rest solely with the President of the Tribunal.

2. He therefore decided this point under Sub-section (c). Now the right of appeal to this Court is governed by another Act, the U.P. Town Improvement (Appeals) Act 3 of 1920. In Section 3(1) it is provided as follows:

Notwithstanding anything contained in the U.P. 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.

3. Learned counsel for the appellant claimed that he came under this Section 3(1)(a) on the ground that the decision was of the President of the Tribunal sitting alone in pursuance of Clause (b) of Section 64. In such a case an appeal does lie to the High Court without any certificate of the President or without any special leave from the High Court. It is obvious that there is some particular reason why these safeguards for an appeal are not required and the reason is that the decision of the President in such a case under Section 64(1)(b) is on the merits of the question of compensation being determined, if the President is on such occasion sitting without assessors. The President may sit with assessors for this purpose or he may not at his option. Obviously what is intended is that where there is a decision on the merits of the matter of compensation there should be an appeal from the decision of the President alone. Now the present order of the President rejecting the application for restoration is not an order on the merits or an order under Section 64(1)(b) at all. It is on the contrary an order under Section 64(1)(c) dealing with a question of law and procedure, namely the right of restoration. Such an order then is not appealable under this Appeals Act at all. This appears to be the intention of the Act that mere decisions in regard to questions of law and procedure of the nature stated, decided by the President alone under Section 64(1)(c), will not be appealable. If, on the other hand, the decision is one by the Tribunal an appeal would lie provided the conditions were satisfied that the President of the Tribunal granted a certificate, or that he refused to grant it and the High Court granted special leave and also on a condition that the amount in dispute was not less than Rupees 5000. That amount would not be satisfied in the case of the present appeal which was only of the value as shown in the memorandum of Rs. 2175. Therefore in the present case even if the decision had been by the Tribunal it would not have been open to this Court to grant special leave for appeal. For these reasons we dismiss this F.A.F.O. under Order 41, Rule 11.


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