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M. Jaswantmall Sowcar Vs. the Collector of Madras - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1949)2MLJ556
AppellantM. Jaswantmall Sowcar
RespondentThe Collector of Madras
Excerpt:
- - because order 45 relates to section 109 as well as to section no. but the appeal to his majesty in council has to be subject to both section no and order 45. in other words, the right of appeal is limited by section no as well as by order 45. we are clearly of opinion that the absence of an reference to section 109 in this section excludes a right of appeal on the ground of its being a fit one to appeal to his majesty in council......fit case for the issue of a certificate to appeal to the federal court under section 109(c) of the civil procedure code.3. section 54 of the land acquisition act gave a right of appeal to the privy council under certain circumstances. the flatter part of that section says,an appeal shall lie to his majesty in council subject to the provisions contained in section no, civil procedure code. 1908, and in order 45, thereof.section no of the civil procedure code has reference only to clauses (a) and (b) of section 109 and not to clause (c). the absence of any mention of section 109, civil procedure code, in section 54 of the land acquisition act shows that the legislature did not intend to give a right of appeal to his majesty in council against an order of the high court unless it fell under.....
Judgment:

Horwill, J.

1. This is an application for leave to appeal to the Federal Court against our valuation of the petitioner's property under the Land Acquisition Act.

2. Since the value of the subject-matter of the proposed appeal to the Federal Court is less than Rs. 10,000, the learned advocate for the petitioner bases his application on an important point or principle which he contends that we applied in fixing the value of the property and argues that this is a fit case for the issue of a certificate to appeal to the Federal Court under Section 109(c) of the Civil Procedure Code.

3. Section 54 of the Land Acquisition Act gave a right of appeal to the Privy Council under certain circumstances. The flatter part of that section says,

an appeal shall lie to His Majesty in Council subject to the provisions contained in section no, Civil Procedure Code. 1908, and in Order 45, thereof.

Section no of the Civil Procedure Code has reference only to Clauses (a) and (b) of Section 109 and not to Clause (c). The absence of any mention of Section 109, Civil Procedure Code, in Section 54 of the Land Acquisition Act shows that the Legislature did not intend to give a right of appeal to His Majesty in Council against an order of the High Court unless it fell under Clauses (a) and (b) of Section 109, which are dealt with in Section 110.

4. It is argued that the reference to Order 45 would extend the right of appeal; because Order 45 relates to Section 109 as well as to section No. This is true; but the appeal to His Majesty in Council has to be subject to both section no and Order 45. In other words, the right of appeal is limited by section no as well as by Order 45. We are clearly of opinion that the absence of an reference to Section 109 in this section excludes a right of appeal on the ground of its being a fit one to appeal to His Majesty in Council.

5. Even if an appeal were permissible under Clause (c) of Section 109, we should be of opinion that this petition should not be granted. In our judgment we did not attempt to lay down any principle of valuation which could be generally applied to a class of cases. We contended ourselves with considering the facts of the case before us and the most appropriate method of valuing the property under the particular circumstances which we had to consider. We said,

We think that in the circumstances of this case and in view of the evidence afforded in respect of the rent fetched for the superstructure and the value of Rs. 10,000 that the market value of the site of five grounds should be arrived at by taking 25 years' purchase.

For the above reasons, we are of opinion that this petition should be dismissed. It is dismissed accordingly with costs.


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