Sachida Nand Lal @ Sachida Nand Shah vs State Of Bihar (Now Jharkhand)

under Section 4 of the Land Acquisition Act, 2

1894 (hereinafter referred to as `the Act') was

issued for acquisition of land bearing Khata

Nos. 277 and 107 situated in the town of

Lohardaga of Ranchi for construction of

agricultural market-yard. According to the

appellant, the Collector divided the land into

two categories; (i) category `ka' and (ii)

category `kha'. The land situated up to 150

feet from the road was categorized as `ka'

whereas land situated beyond 150 feet from the

road was categorized as `kha'. The Collector

assessed the value of the land of category `ka'

at the rate of Rs.48,500/- per acre and

category `kha' at the rate of Rs.32,335/- per

acre. It was, however, the allegation of the

appellant that the Deputy Secretary, Government

of Bihar illegally and without any reason or

ground and without authority of law reduced the

rate to Rs.25,000/- and Rs. 16,000/- per acre

for category `ka' and `kha' respectively.

Accordingly, an award was passed on May 05,

1980 on that basis.

3

3. The appellant being aggrieved by the

award sought reference for enhancement of

compensation under Section 18 of the Act which

was registered as Land Acquisition Case No. 498

of 1981. Similar references were also sought by

other land owners. All the references came up

for hearing before the Court of learned

Subordinate Judge, Ranchi and the learned Judge

by judgment and order dated July 06, 1987

partly allowed the reference. For the land of

category `ka', the Reference Court fixed

compensation at the rate of Rs.48,000/- per

acre and for category `kha', it was fixed at

the rate of Rs.24,250/- per acre. The Court

also awarded solatium at the rate of 30% and

interest @ 6% with effect from June 01, 1979.

4. The appellant challenged the judgment

and order passed by Reference Court by filing

First Appeal No. 229 of 1989 in the High Court

of Patna, Ranchi Bench. The learned Single

Judge before whom the appeal came up for

hearing partly allowed it. So far as the land 4

of category `ka' is concerned, he enhanced

compensation from Rs.48,000/- per acre to

Rs.66,000/- per acre. He, however, declined to

interfere with the rate of `kha' category of

land and no enhancement at all was granted to

the said land, though the Reference Court had

observed in the order that category `kha' would

get 50% amount of compensation of the land of

category `ka'.

5. In the circumstances, the appellant-

claimant approached the Division Bench of the

High Court by filing Letters Patent Appeal

No.363 of 1999. The Division Bench of the High

Court disposed of the Letters Patent Appeal by

a cryptic order dated June 22, 1999 which read

as under;

"Heard counsel for the appellant.

We do not find any merit in this Letters Patent Appeal which is accordingly dismissed."

6. The above order passed by the Division

Bench of the High Court in the Letters Patent 5

Appeal is challenged by the appellant in the

present appeal. Initially when the matter was

placed for admission hearing, the following

order was passed by this Court on August 28,

2000;

"Issue notice limited to the question, whether the High Court is right while enhancing the rate of compensation of category `Ka' land to Rs. 66,000.00 per acre but maintaining the category `Kha' land at Rs.

24,250.00. The case of the petitioner is that the rate of the land of `Kha' should have been at least half of the rate of the `Ka' property as held by the referring Court."

(emphasis supplied)

7. On November 13, 2000, the petition was

called out for hearing. Service of notice was

complete, but none appeared for the respondent

and hence leave was granted. It was thereafter

placed for final hearing before the Court, but

it was brought to the notice of the Court that

in the light of bifurcation of two states of

(i) Bihar and (ii) Jharkhand, the subject

matter in the appeal related to the State of 6

Jharkhand. Fresh notices were, therefore,

issued and opportunity was given to the State

of Jharkhand to make submissions.

8. We have heard the learned counsel for

the parties.

9. The learned counsel for the appellant

contended that the Division Bench committed an

error of law in dismissing the Letters Patent

Appeal without entering into the merits of the

matter. He also submitted that the Division

Bench ought to have allowed the appeal by

enhancing the amount of compensation.

10. In our opinion, however, the matter

deserves to be allowed on the first ground and

it would not be appropriate for this Court to

express any opinion on the second question on

merits of the matter.

11. As already observed earlier, after the

Reference Court decided the Reference, Appeal

from Original Decree was preferred by the

claimant before the High Court. It was heard

by the learned Single Judge of the High Court. 7

Section 54 of the Act provides for filing

Appeals in proceedings before the Court. It

reads as under;

Appeals in proceedings before Court.--Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLIV thereof.

12. In view of express provision as to

filing of appeal under the Act as also the

provision relating to filing of Letters Patent

as applicable to the High Court of Patna, an

order passed by a single Judge of the High

Court can be challenged by filing an intra-

Court appeal before a Division Bench of the

same Court. The claimant was, therefore,

justified in exercising the right of filing 8

Letters Patent Appeal and accordingly, appeal

was preferred before a Division Bench.

13. Since the appeal before the learned

Single Judge was Appeal from Original Decree,

i.e. First Appeal, the Division Bench ought to

have considered the correctness or otherwise of

the order passed by the learned Single Judge by

exercising same powers as exercised by the

learned single Judge in the appeal from

original decree. The Letters Patent before the

Division Bench was not in the nature of appeal

from an appellate decree, i.e. Second Appeal,

but it was continuation of appeal from original

decree, i.e. First Appeal. In the

circumstances, in our opinion, the Division

Bench committed an error of law in dismissing

the appeal in limine by a brief order quoted

hereinabove without considering the merits.

14. The law on the point is well-settled

as regards the power of the Division Bench

while dealing with and deciding Letters Patent 9

Appeal from an order passed by a single Judge

in exercise of power as a Court of Appeal.

15. In Asha Devi v. Dukhi Sao, AIR 1974 SC

2048, a similar question came up for

consideration before this Court. There, a

First Appeal came up for hearing before a

Single Judge of the High Court and was disposed

of. Against the said order, a Letters Patent

Appeals was filed. A preliminary objection was

raised on behalf of the respondents that since

it was an appeal from a decree passed by a

Single Judge of the High Court in First Appeal,

the appeal before the Division Bench was in

substance and in reality in the nature of

Second Appeal and questions of law only could

be agitated in such Letters Patent Appeal.

16. Negativing the contention and holding

that the scope of appeal before the Division

Bench was similar to one before a Single Judge,

this Court stated;

"There is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a Single 10

Judge of that Court in appeal from a judgment and decree of a court subject to the superintendence of the High Court. The only question is whether the power of a Division Bench hearing a Letters Patent appeal under Clause 10 of the Letters Patent of Patna High Court or under the analogous provisions in the Letters Patent of other High Courts is limited only to a question of law under Section 100 of the CPC or has it the same power which the Single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Sections 100 and 101 of the CPC cannot be made applicable to an Appellate Court hearing a Letters Patent appeal from the judgment of a Single Judge of that High Court in a first appeal from the judgment and decree of the court subordinate to the High Court, for the simple reason that a Single Judge to the High Court is not a Court subordinate, to the High Court".

17. The above observations in Asha Devi

make it explicitly clear that an intra-Court

appeal is required to be considered and decided

by the Division Bench of the High Court on the

same footing as an appeal considered and

decided by a single Judge of the Court. 11

18. A similar question again arose before

this Court recently in Gaudiya Mission v.

Shobha Bose & Anr., JT 2008 (1) SC 384. There

also, a single Judge of the High Court of

Allahabad decided the First Appeal against

which Letters Patent Appeal was filed before a

Division Bench. There also, the Division Bench

without entering into questions of fact and

law, dismissed the appeal as if it was in the

nature of Second Appeal. Setting aside the

order passed by the Single Judge, following the

law laid down by this Court in Asha Devi and

remitting the matter to the Division Bench of

the High Court for fresh disposal in accordance

with law, this Court held that the order passed

by the Division Bench was liable to be set

aside and the matter was required to be decided

on all questions, i.e. on questions of fact as

also on questions of law.

19. The same principle applies in the

present case also. The order passed by the

Division Bench of the High Court dismissing the 12

Letters Patent Appeal cannot be said to be in

accordance with law and the said order deserves

to be set aside. Accordingly, the appeal is

allowed and the order passed by the Division

Bench is set aside. The appeal stands allowed

and the matter is remanded to Division Bench

which will now hear the parties on merits and

decide the case in accordance with law by a

reasoned judgment. On the facts and in the

circumstances of the case, however, there shall

be no order as to costs.

20. Before parting with the matter, we may

clarify that we have not expressed any opinion

on merits of the matter one way or the other.

All the observations made by us hereinabove

have been made only for the purpose of deciding

the present appeal. As and when the matter will

be placed for hearing before the Division

Bench, the same will be decided strictly on its

own merits without being influenced by the

above observations.

21. The appeal is accordingly allowed. 13

.........................................................J. (C.K. THAKKER)

New Delhi; .........................................................J. November 07, 2008 (D. K. JAIN)