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The State of West Bengal Vs. Mohamad Hanif - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSupreme Court Appln. Nos. 10 and 11 of 1972
Judge
Reported inAIR1972Cal467,76CWN865
ActsConstitution of India - Article 133(1); ;Defence of India Act - Section 19 and 19(1)
AppellantThe State of West Bengal
RespondentMohamad Hanif
Appellant AdvocateP.K. Sen Gupta and ;N.G. Das, Advs.
Respondent AdvocateBankim Chandra Banerjee and ;Gaganendra Krishna Deb, Advs.
DispositionApplication dismissed
Cases ReferredCollector Varanashi v. Gouri Shankar Misra
Excerpt:
- .....from original decree no. 296 of 1959, the government also challenged the said award in other appeals -- appeal from original decree no. 377 of 1959, seeking to reduce the award to rs. 53350,00. 2. the division bench of this court allowed the claimant's appealno. 296 of 1959 in part, enhanced the award of compensation to rs. 2,80,759/-and dismissed the government's appeal no. 377 of 1959. 3. the petitioner, the state of west bengal being aggrieved against the said judgment and decree of the division bench, intends to prefer two appeals to the supreme court and prays for certificate of fitness for leave to appeal under article 133(1) of the constitution. 4. mr. sen gupta, appearing on behalf of the petitioner, contends that the judgment sought to be appealed from, is one of reversal;.....
Judgment:

Amiya Kumar Mookerji, J.

1. These are two applications under Article 133(1) of the Constitution praying for Certificates for leave to appeal to the Supreme Court against the inclement and decree of a Division Bench of this Court dated 9th of November, 1970, passed in two appeals from Original Decree Nos. 296 and 377 of 1959. The said appeals were directed against an award given by the Arbitrator. 24-Parganas in a reference under Section 19 of the Defence of India Act, in respect of payment of terminal compensation. The premises No. 11, Canal South Road, also known as Pagladanga, was requisitioned including the land and structure under the Defence of India Rules. The said property was derequisitioned on 13th of August. 1946. The owner claimed terminal compensation to the tune of Rupees 609424/-. The Lands Hiring and Disposal Department of the Government assessed the compensation at Rs. 154515.50. The owner did not accept the department's assessment, as a result, the matter was referred to the Arbitrator. The reference was originally heard by Sri J. C. Mazumdar, who made an award on 18-8-1951. Against that award both the owner and the Government appealed to this Court. This Court allowed those appeals and the case was remitted back to the Arbitrator for rehearing with certain directions. The case was reheard by the new Arbitrator who passed an award for Rs. 154515,50. From that award, the claimant preferred appeal from Original Decree No. 296 of 1959, the Government also challenged the said award in other appeals -- appeal from original decree No. 377 of 1959, seeking to reduce the award to Rs. 53350,00.

2. The Division Bench of this Court allowed the claimant's appealNo. 296 of 1959 in part, enhanced the award of compensation to Rs. 2,80,759/-and dismissed the Government's appeal No. 377 of 1959.

3. The petitioner, the State of West Bengal being aggrieved against the said judgment and decree of the Division Bench, intends to prefer two appeals to the Supreme Court and prays for Certificate of fitness for leave to appeal under Article 133(1) of the Constitution.

4. Mr. Sen Gupta, appearing on behalf of the petitioner, contends that the judgment sought to be appealed from, is one of reversal; the proposed appeal satisfies the valuation test. It is also a final order because it has finally determined the lis between the parties. Therefore, it comes directly under Article 133(1)(a) of the Constitution.

5. Mr. Banerjee, appearing on behalf of the respondent, contends that the instant case does not come within the purview of Article 133(1)(a) of the Constitution, as the decision given by this Court in appeal against the award is not a decree, judgment or final order. The decision of the Arbitrator appointed under Section 19 (1) (b) of the Defence of India Act, is expressly referred to in Section 19 (1) (f) as an 'award'. An appeal is a continuation of the original proceeding and if the original proceedings are arbitration proceedings, their character do not change when they ere brought up before an appellate tribunal. In support of his contentions. Mr. Banerjee relied upon the decision of the Supreme Court in Hans Kumar Kishen Chand v. Union of India, : [1959]1SCR1177 .

6. The Supreme Court observed in that case that it is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure. It will depend on whether the proceedings in which it was given came before the Court in its normal civil 'jurisdiction. When the dispute is referred to the Court for determination by way of arbitration or where it comes by way of appeal against an award then the decision is not a judgment, decree or order under the Code of Civil Procedure. The Supreme Court came to the conclusion that the word 'arbitration' in Section 19 (1) (g) of the Act covered the entire proceedings from their commencement before the Arbitrator to their termination in the High Court on appeal, where an appeal had been preferred, and the High Court in hearing and deciding the appeal, acted essentially as an Arbitration Tribunal. Therefore, the decision of the High Court in the appeal under that provision, is not a judgment, decree or order within the meaning of Sections 109 and 110. Civil Procedure Code.

7. The above judgment of the Supreme Court has again came up for consideration in Collector Varanashi v. Gouri Shankar Misra, : [1968]1SCR372 . In that case, the Supreme Court held that under Section 19 (f) of the Act: the High Court functions as a 'Court' and not as 'a designated person' or 'Arbitration Tribunal'. And it is further held that the decision rendered by the High Court under Section 19 (1) (f) of the Defence of India Act is a 'determination', and hence, it is within the competence of the Supreme Court to grant special leave to appeal under Article 136 of the Constitution.

8. Mr. Sen Gupta contends that the Supreme Court held in the above case, : [1968]1SCR372 that the High Court is a 'Court', accordingly, it should be held that the order passed in the appeal under Section 19 (1) (f) is a final order within the meaning of Article 133(1)(f) of the Constitution.

9. It is true that the Supreme Court did not accept the position that the High Court is not a Court when it hears appeal under Section 19 (1) (f) of the Act but at the same time in the later decision the Supreme Court has left unaltered the previous view in Hans Kumar Kissen Chand's case, : [1959]1SCR1177 that the decision given by the High Court in an appeal against the award, is neither a decree, judgment or final order. Moreover, in the Collector of Varanashi's case, : [1968]1SCR372 the Supreme Court has specifically held that the decision rendered by the High Court under Section 19 (1) (f) of the Act is a 'determination' which occurs in Article 136 but does not occur in Article 133. The position, therefore, is that although both the proposed appeals satisfy the valuation test but they do not satisfy the other conditions in so far as that the decision of the Division Bench of this Court dated 9th of November, 1970, in appeal against an award under the Defence of India Act, is pot a decree, judgment or final order within the meaning of Article 133(1) of the Constitution. That being so, no Certificate of fitness to appeal to the Supreme Court can be granted.

10. In the result, these applications are dismissed.

11. There will be no order as to costs.


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