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Governor-general of India in Council Vs. Bhola, Son of Kanhia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H262
AppellantGovernor-general of India in Council
RespondentBhola, Son of Kanhia and ors.
Cases ReferredCouncil v. Hafiz Ghias
Excerpt:
.....227 of the constitution. - 1. this order will dispose of the following connected appeals and cross-appeals as well as the cross-objections that have been filed in some of them regular first appeals nos. 255. the amounts involved in the appeals, cross-appeals and cross-objections as well as the lands to which they relate will be given hereafter. (ii) the decision having failed to determine some material issue of law or usage having the force of law: 4. it will thus be seen that no appeal from the order of a tribunal lies unless the requirements of section 3 are satisfied and even when an appeal does lie, it is limited to the points mentioned in sub-section (2) of section 3. the first point urged by mr. the cross-objections must therefore fail on this ground. it was held that the.....teja singh, j.1. this order will dispose of the following connected appeals and cross-appeals as well as the cross-objections that have been filed in some of them regular first appeals nos. 247 to 256 and regular first appeals nos. 312 to 314 of 1944.2. a number of fields from the area of village rasidarapur were acquired for the delhi improvement trust for the execution of the industrial area development scheme by a notification under section 36, delhi town improvement act published on 30th december 1939. the collector awarded compensation at the rate of rs. 54 per bigha for rosli land, es. 30 per bigha for ban jar qadim rs. 54 per bigha for ghair mtimkin land and rs. 75 per bigha for chahi land. he also awarded in addition to the value of the land certain amounts for various other items.....
Judgment:

Teja Singh, J.

1. This order will dispose of the following connected appeals and cross-appeals as well as the cross-objections that have been filed in some of them Regular First Appeals Nos. 247 to 256 and Regular First Appeals Nos. 312 to 314 of 1944.

2. A number of fields from the area of village Rasidarapur were acquired for the Delhi Improvement Trust for the execution of the Industrial Area Development Scheme by a Notification under Section 36, Delhi Town Improvement Act published on 30th December 1939. The Collector awarded compensation at the rate of Rs. 54 per bigha for rosli land, Es. 30 per bigha for ban jar qadim Rs. 54 per bigha for ghair mtimkin land and Rs. 75 per bigha for chahi land. He also awarded in addition to the value of the land certain amounts for various other items such as trees, wells, etc. Some owners made references to the Tribunal, who increased the valuation of the land as below : ghair mumhin RS. 22-8-0 per bigha; ban jar cadim Rs. 45 per bigha; rosli as. 61 per bigha; land used for kiln purposes Rs. 90 per bigha; and chahi land Rs. 112-8-0 per bigha. In certain cases the value of the standing crops was also increased by 100 per cent. The first set of appeals, namely, Regular First Appeals Nos. 247 to 255 are by the Governor-General in Council. Regular First Appeal No. 313 is a cross appeal to Regular First Appeal No. 250 and is by Than Singh and six others. Dharambir, Gokal Chand, Gobind Parshad and Ram Kumar respondents in Regular First Appeal No. 250 have preferred cross-objections. Regular First Appeal No. 312 is a cross appeal to Regular First Appeal No. 251 by Khazan Singh and others. Regular First Appeal No. 25D has given rise to cross-objections by two of the respondents, Ram Mehar and Shiv Charan. Regular First Appeal No. 314 is a cross appeal to Regular First Appeal No. 255. The amounts involved in the appeals, cross-appeals and cross-objections as well as the lands to which they relate will be given hereafter.

4. Before dealing with the various points urged by the appellants and the respondents it is necessary to deal with the preliminary objection raised by Mr. Bishen Narain, learned Counsel for the Governor-General in Council, that the cross-objections mentioned above are not maintainable in law. With a view to be able to appreciate the reasons advanced by the learned Counsel in support of his objection it is necessary to refer to the relevant provisions of the United Provinces Town Improvement (Appeals) Act III [3] of 1920, as extended to Delhi by which the appeals are governed. Section 3 reads 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 any 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.

Section 4 deals with procedure in appeals and is as under:Subject to the provisions of Section 3, the provisions of the Code of Civil Procedure, 1908, with respect to appeals from original decrees shall, so far as may be, apply to appeals under this Act.

4. It will thus be seen that no appeal from the order of a Tribunal lies unless the requirements of Section 3 are satisfied and even when an appeal does lie, it is limited to the points mentioned in Sub-section (2) of Section 3. The first point urged by Mr. Bishan Narain was that since none of the respondents, who put in cross-objections, had obtained the leave of the President of the Tribunal, which was necessary for them to obtain, if they wanted to prefer an appeal, they had no right to put in cross-objections. He further argued that in some cases the value of the subject-matter of appeal being less than Rs. 5000 want of permission by the President of the Tribunal would have been an insurmountable obstacle in the respondents' way of preferring an appeal, because they could not even apply for special leave to the High Court. Apart from this, Mr. Bishan Narain's position was that the right to put in cross-objections is a special right, which could only be granted by statute and since no such right has been specifically granted by the Appeals Act, the cross-objections could not be made. The respondent's counsel on the other hand emphasised the words of Section 4 of the Act and contended that by virtue of the section the provisions of the Civil Procedure Code, governing appeals from original decrees, which are contained in Sections 96 to 99 and Order 41, Civil P.C., apply and since Rule 22 of Order 41 definitely gives the respondent a right to put in cross-objections, this right remains unaffected by the provisions of leave or special leave which only govern appeals. Sub-rule (1) of Rule 22 lays down that any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

5. Now this sub-rule is easily divisible into two parts. In the first part, a right is given to the respondent, even though he may not have appealed from any part of the decree, to support the decree on any of the grounds which may have been decided against him by the Court below. In the second part, a right is given to him to challenge the correctness of the decree and claim the relief denied to him by the Court below, by taking cross objections to that part of the decree in the same manner as he could have done so by a separate appeal, Mr. Bishen Narain concedes that so far as the first part of the sub-rule is concerned, it can be availed of by the respondents. What he, however, objects to is the use by the respondent of the second part, his argument being that Section 4, Appeals Act, applies to only those provisions of the Civil Procedure Code which relate to appeals from original decrees and this part which relates not to appeals but to cross-objections can have no application.

6. On giving careful consideration to the matter, I am inclined to think that the contention cannot be upheld. It is true that a cross-objection cannot be regarded as an appeal for all purposes, but when an appeal is preferred, according to Rule 22 of Order 41, the right to put in cross-objections at once accrues to the respondent and in the view that I take I cannot but hold that the provision relating to the right of cross-objections is a provision relating to appeal. The way in which Rule 22 is worded would also go to show that the legislature intended to put the respondent's right to take cross-objections to that part of the decree which goes against him on the same footing as the one to support the decree on the grounds which may have been found against him, otherwise, it would not have joined both the rights in the same sub-rule. As regards the requirements of the leave of the President of the Tribunal it has no application in the case of a respondent and when an appeal has been properly preferred the respondent's right to take cross-objections under Rule 22 of Order 41, is not affected by what is laid down in Section 3, for the simple reason that the section merely applies to appeals.

8. Reference in this connection is invited to certain observations made by a Bench of the Lahore High Court in Iflihhar Ali Khan and Ors. v. Bisalat Khan and Ors. A.I.R. 1924 Lah. 368. The appeal arose out of a case in which a question of custom was involved. The Courts below decided that question in favour of the appellant but found against him on other points. In the appeal the respondent wished to impugn the finding of the Court below on custom. The appellant contended that the question of custom could not be raised, because of the provisions of Section 41, Punjab Courts Act. Sub-section (3) of that section as it stood then laid down:

Notwithstanding anything in Sub-section (1) no appeal shall lie to the High Court from a decree passed in appeal by any Court subordinate to the High Court regarding the validity or the existence of any custom or usage unless the Judge of the lower appellate Court has certified that the custom or usage is of sufficient importance etc.

8. It was argued on behalf of the appellant that before a respondent could criticise a finding of the lower appellate Court on custom he should have obtained a certificate from that Court. The learned Judge while spurning the contention remarked that the prohibition contained in Sub-section (3) of Section 41, did not apply to a respondent, who was free to agitate the question of custom in answer to the appeal and to support the decree on any of the grounds that may have been decided against him, by virtue of Order 41, Rule 22. I am aware that in that case the respondent merely wanted the decree passed in his favour to be up-held and did not challenge any part of the decree by claiming a relief which had been denied to him by the Court below, but I see no reason why the same principle should not be extended even to the other case. Apart from this, it may be mentioned that all that Section 3, Appeals Act, lays down is that where the decision is that of the Tribunal and it is intended to prefer an appeal there should be a certificate from the President of the Tribunal that the case is a fife one for appeal and here certificates to this effect have been granted by the President and it is by virtue of those certificates that the appeals, out of which arise the cross-objections, have been properly filed. Mr. Bishen Narain's contention is that the certificates in question were granted to the appellants and it was not open to the respondents to take advantage of them. In support of his contention the learned Counsel refers-to Ram Shanhar and Anr. v. Sheo Butt and Anr. A.I.R. 1935 Oudh 88. In that case the appeal was directed against the judgment and decree of a learned Single Judge of that Court. The respondents filed cross-objections in respect of a part of the property about which their claim had been negatived. The appellants objected to the maintainability of the cross-objections on the ground that the respondents had not obtained a declaration that the case was a fit one for appeal. The learned Judges allowed the objection to prevail and made the following observations:

We are very doubtful o the right of the defendants to prefer cross-objections as a matter of right, without making any application and getting the requisite permission under Section 12 (2), Oudh Courts Act. Reliance has been placed on Order 42, Rule 1, Civil P.C., which lays down that the rules of Order 41 shall apply, sO far as may be, to appeals from appellate decrees. It has been argued that the decree of Allsop, J., in second appeal was an appellate decree within the meaning of this rule, and therefore the defendants are entitled as of right to file cross-objections under Order 42, Rule 1, Civil P.C. We are of opinion that this argument is fallacious.... We are inclined to think that the words 'Appeals from Appellate Decrees' as used in Order 42, Rule 1, Civil P.C., have reference only to second appeals filed under Section 100, Civil P.C. It would be anomalous that while an appellant is not under Section 12(2), Oudh Courts Act, entitled to appeal as of right, and cannot do so without obtaining a declaration from the Single Judge concerned that the case 13 a fit one for appeal, the respondents should be allowed to file cross-objections as a matter of course without the necessity of obtaining any such declaration. The cross-objections must therefore fail on this ground.

9. A different view was, however, taken by a Bench of the Bombay High Court, of which the eminent Chief Justice Sir L.H. Jenkins was a member, in Raghunathdas Gopaldas and Ors. v. Secretary of State for India in Council and Anr. 29 Bom. 514. The facts of that case are somewhat similar to those of the present case and the appeal arose out of proceedings under the City of Bombay Improvement Act, IV [4] of 1898, Sub-section (1) of Section 48 of the Act laid down inter alia that 'the award of the Tribunal, or in the event of disagreement, the award of the majority of the Tribunal, shall be deemed to be the award of the Court, and shall, subject to the provisions for appeal hereinafter contained, be final, and the President of the Tribunal shall be deemed to be the Judge....' Sub-section (ii) of Section 48 was to the effect that 'in any case in which the President may grant a certificate that the case is a fit one for appeal, there shall be an appeal to the High Court from the award or any part of the award of the Tribunal.' The procedure to be observed in connection with appeals was regulated by Act XIV of 1904. Section 2 of this Act reads as below:

Subject to the provisions of Section 48, Sub-section (11) of the said Act, (Act IV of 1898) 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 that sub-section.....

10. The appeal had been preferred on the strength of a certificate granted by the President on the application of the claimant. The words of the certificate were:

I hereby certify that the above award is a fit one for an appeal to the High Court under Section 48(11) of the City of Bombay Improvement Act of 1898 on the grounds accompanying the petition of Messrs. Wadia.

Ghandy and Co, attorneys for the claimants herein, a copy of which is hereto annexed.' The Secretary of State, who was the respondent, put in cross-objections without obtaining a fresh certificate. It was held that the cross-objections were perfectly in order. The following observations made by the learned Judges may be quoted with advantage:

The section simply enacts that the President may grant a certificate that the case is a fit one for appeal, and why the certificate does not follow those words I do not know...The sub-section does not provide for leave to appeal being granted to any individual, but for a certificate that the case is a fit one for appeal, that is, the whole ease, and not only particular part of it. The consequence of the grant of this certificate is that there shall be an appeal to the High Court from the award or any part of the award, and this must mean that there shall be a right of appeal, or, to use the language of the Civil Procedure Code, that an appeal will lie to the High Court.

The grant of the certificate, therefore, entitled the Improvement Trustees as well as the claimants to appeal from the award or any part of the award, for the case was determined to be a fit one for appeal and it, therefore, follows that the Improvement Trustees as respondents are entitled to object in manner provided by Section 561 of the Civil Procedure Code.

It may here be mentioned that Section 561, Civil P.C. of 1882 was in the same words as Sub-rule (1) of Rule 22 of Order 41 of the present Code. With all respect I consider that the view taken in the Bombay case is correct and I follow this case in preference to the Oudh case.

11. The only other observation that I wish to make in connection with this point is that the question involved is one of jurisdiction and even if we were of opinion that it is not free from doubt, according to the well-known principle that in a matter of this kind benefit of the doubt should be given to the subject, I would give the decision in favour of the respondents. In this connection, I wish to refer to a Bench decision of the Lahore High Court in Harkishan Lal v. Peoples Bank of Northern India Ltd. A.I.R. 1936 Lah. 608, in which the learned Judges relying upon the observations of Lord Campbell, a distinguished Lord Chief Justice of England, held that where jurisdiction was subject to doubt it is the duty of a High Court to seize it. Accordingly I hold that the cross-objections are in order and are maintainable.

12. Most of the land, which is the subject-matter of the present appeals, is either rosli or ghair mumkin, though parts of it are banjar and chahi also. In some cases land under kiln was also included, but this class of land as well as chahi land was very small in area. The evidence adduced by the claimants to prove the market value included instances of sale relating toother plots. The Tribunal did not accept that evidence and assessed the market value on the basis of annual rent. So far as the kiln land is concerned it capitalised the value on the basis of seven years' purchase and as regards the other land on that of 30 years' purchase, the rent being calculated according to the average given in the Lal Kitab. Mr. Bishea Narain did not take up the position that sales of lands similar to the land acquired, could not be taken into consideration at all. All that he urged was that for purposes of assessing the value of agricultural land only those sales were relevant as instances in which |the land besides being agricultural at the time of sale was purchased for agricultural purposes also. In my opinion, this contention of learned Counsel was right because according to Section 23 as amended by Section 10, U.P. Town Improvement Act VIII [8] of 1919, as extended to the Province of Delhi, the market value of the land has to be the market value according to the use to which the land was put at the relevant date. The view taken at one time was that for the purpose of calculating market value rent or produce of the land only could be taken into consideration but, as a Bench of this Court of which I was a member, recently pointed out in Governor-General in Council and another v. Hafiz Ghias-ud-Din and Ors. A.I.R. (36) 1919 E.P. 160) all kinds of evidence, including evidence of other sales of similar land and bought for similar purpose, is relevant. It was held in that case that the Tribunal has as its objective the estimate of the market value of the property, which expression means the price which a willing seller might reasonably expect to obtain from a willing purchaser. The learned Counsel for the respondents complained that the Tribunal did not consider all the evidence produced by them about other sales and the evidence that came for consideration was not properly appreciated. In view of the words of Sub-section (3) of Section 2 of the Appeals Act, the second objection must be ignored but the first objection deserves to be carefully examined. (His Lordship after discussing the evidence continued:)

13. Last of all our attention was drawn to a judgment of a Division Bench of the Lahore High Court in R.S.A. No. 201 of 1915. That land was also acquired for the Industrial Area Scheme. In fact it was acquired along with the present land by virtue of the same notification. The valuation of that land as assessed by the Collector was also the same as in the present case, but the Tribunal increased the valuation to Rs. 100 per bigha for all kinds of ghair mumkin land and Rs. 120 per bigha for rosli land. On appeal the learned Judges of the High Court upheld the Tribunal's valuation. The respondents counsel contended that the decision of the Tribunal as it was confirmed by the High Court constituted a very valuable instance and prayed that it should be taken as guide for assessing the value of the present land. Mr. Bisheri Narain, however, argued that there was considerable difference between that land and the plots with which we are now concerned.

14. He further maintained that the income of the land in that case was very high and even if the valuation is assessed on the basis of 30 years' purchase the figure arrived at would be much lower. In addition, he urged that 20 years' purchase was the fair basis. The rulings cited by him and the counsel for the respondents disclose a sharp difference of opinion on the question whether 20 years is the proper period or 30 years. In the Lahore case mentioned above the learned Judges observed that if rental basis was to be the criterion of the market value 20 years' purchase was a bit too low. My own view is that it is not possible to lay down any rigid or uniform rule, and the decision of the question must depend upon the facts proved in each case and the prevalent rate of interest. It is, however, not necessary to go into this matter here, because it is now well recognised that to assess the market value of a property by capitalising the rent for a number of years is not a satisfactory method at all and should be resorted to only if no other method is available, (see in this connection Governor-General in Council v. Hafiz Ghias-ud-Din A.I.R. (36) 1949 E.P. 160 and, in the present case, there is evidence of market value of similar land situated in the same locality and bought for similar purpose, which can be accepted as a correct value. R.S.A. No. 201 of 1945 referred to above is the most important of such evidence. Though all the references were filed together, the reference out of which that appeal arose was decided after these references and the decision of the Tribunal was mainly based on the evidence of market value. Learned Counsel for the Governor-General was not able to convince us that there was any difference in value between that land with which we are dealing now and I hold that as in that case the value should be assessed at Rs. 120 per bigha for rosli land and Rs. 100 per bigha for all kinds of ghair mumkin land including the land under the kiln, Chahi land will also be valued at Rs. 120 per bigha.

15. The only other matter that remains to be determined is the value of the standing crops. The Collector allowed compensation at the rate of Rs. 4 per bigha for jawar and Rs. 2 per bigha for bajra. The claimants' contention was that they should have been allowed at Rs. 25 per bigha for jawar and Es. 15 per bigha for bajra. They also produced evidence in support of their contention. The Tribunal did not accept the evidence and even observed that it seemed hardly likely that an experienced officer like the Land Acquisition Collector would only estimate the value of the crops at ⅕th of their value. In spite of this, it increased the amount on this account by doubling the rate fixed by the Collector with a view 'to avoid any possibility of injustice.' I agree with Mr. Bishen Narain that after rejecting the claimants' evidence the Tribunal was not justified in increasing the valuation of the standing crops made by the Collector and the reason given by it in support of the increase was, if I may say so with respect, not sound, but I do not think that we shall be justified in interfering with this part of the Tribunal's order, because it appears to me that substantial justice has been done and taking into consideration the fact that the claimants' evidence was not rebutted by any evidence on the part of the Governor-General, the valuation of the Collector could not be maintained. As a result of the above findings, I would order that all the appeals by the Governor-General in Council namely, Regular First Appeals Nos. 247 to 255 of 1914 must stand dismissed with costs.

16. In Regular First Appeal No. 248 of 1944 the land involved was 8 bighas and 3 biswas, all ghair mumkiii. Bhim Singh, respondent, has put in cross objections.' I would order that these cross-objections be accepted and the value of the land be increased to Rs. 815.

17. There are also cross-objections in Regular First Appeal No. 249 of 1944. The land involved in this appeal was 8 bighas and 12 biswas ghair mumhin. I would order that the cross-objections be accepted and the value of this land be increased to ES. 860.

18. Regular First Appeal No. 313 of 1944 is a cross appeal (by Than Singh and six others)- to R.F. A. No. 250 and there are also cross-objections by Gokal Singh and others. The total land which was the subject-matter of the appeal is 288 bighas and 18 biswas, but the land in respect of which cross appeal and cross-objections have been preferred amounts only to 13/15th share of this land. According to the value assessed by me I would order that the cross appeal and the cross-objections be accepted to the extent that the value of the land to which they relate be increased to Rs. 29,900-13-3.

19. Regular First Appeal No. 312 of 1944 is a cross-appeal to Regular First Appeal No. 251 of 1944 by the Governor-General. The land involved is 42 bighas and 15 biswas. I would order that the cross-appeal be accepted to the extent that the value of this land be raised to Rs. 4282.

20. In Regular First Appeal No. 253 of 1944 there are cross-objections by all the respondents and the land involved is 4 bighas and 19 biswas out of which 2 bighas and 4 biswas is ghair mumhin and 2 bighas and 15 biswas is ban jar qadim. I would order that the value of this land be increased to Rs. 495 and the cross-objections be accepted to that extent.

21. This leaves us with Regular First Appeal No. 314 of 1944 which is a cross appeal to Regular First Appeal No. 255 of 1944. The land which is the subject-matter of the cross appeal is 56 bighas and 8 biswas consisting of 2 biswas ohahi, 6 bighas and 19 biwas rosali, 4 bighas and 4 biswas banjar qudim and 45 bighas and 3 biswas ghair mumhin. I would order that the cross appeal be accepted to the extent that the value of the rosli and chahi land be increased to Rs. 846 and that all raised to RS. 4935 i.e., Rs. 5781 in all.

22. All other amounts awarded by the Tribunal consisting of miscellaneous expenses, lawyers' fees, value of the standing crops, trees and wells, etc, will stand. In addition the claimants will get the interest on the amount increased by me at the rate of six per cent, per annum from the date they were dispossessed to the' date of payment.

23. Since the claims in the cross-objections as well as in cross appeals were highly exaggerated, I would direct that the parties will bear their own costs in this Court. The order of the Tribunal regarding the costs in the proceedings before it will stand.

Bhandari, J.

I agree.


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