U.P. Avas Evam Vikas Parishad, Lucknow vs Sheo Narain Kushwaha & Ors

U.P. Avas Evam Vikas Parishad ... Appellant

Vs.

Sheo Narain Kushwaha & Ors. ... Respondents

O R D E R

R. V. Raveendran.J,

Leave granted. Heard.

2. The appellant, for whose benefit certain lands

(including the land of respondents) at village Daulatpur,

District Kanpur were acquired, filed an appeal before the

Allabahad High Court challenging the judgment of the

Reference Court which increased the compensation for the

acquired land of respondents from Rs.10,250/- per bigha to

Rs.1,10,250/- per bigha. The said appeal has been dismissed

summarily by a division bench of the Allahabad High Court,

by the impugned non-speaking order dated 20.12.2005

upholding the award of Rs.1,10,250/- per bigha as

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compensation. The High Court has stated that it was doing

so, in exercise of the power under Order 41 Rule 11 of the

Code of Civil Procedure (`Code' for short). The said order

is challenged in this appeal by special leave.

3. The appeal in question was filed under section 54 of

the Land Acquisition Act, 1894 (for short `LA Act') which

provides that an appeal shall lie in any proceedings under

that Act, to the High Court from the award of the Reference

Court, subject to the provisions of the Code of Civil

Procedure, applicable to appeals from original decrees. An

appeal is a proceeding where a higher forum reconsiders the

decision of a lower forum, on questions of fact and/or

questions of law, with power to confirm, reverse, modify

the decision or remand the matter to the lower forum for

fresh decision. In Hari Shanker vs. Rao Girdhari Lal

Chowdhury (AIR 1963 SC 698) this court held :

"....A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done is second appeals arising under the Code of Civil Procedure."

4. Section 96 of the Code provides that save where

otherwise expressly provided in the body of the Code or by

any other law for the time being in force, an appeal shall

lie from every decree passed by any court exercising

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original jurisdiction to the court authorized to hear

appeals from the decisions of such court. Order 41 of the

Code regulates appeals from original decrees. Rule 11 of

Order 41 relates to power to dismiss appeals without

sending notice to lower court and sub-rules (1) and (4)

thereof, relevant for our purpose, are extracted below :

"11. Power to dismiss appeal without sending notice to Lower Court.-

(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal.

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(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment."

5. It is evident from sub-rule (1) that an appellate

court can dismiss an appeal after a preliminary hearing

without calling for the records of the trial court and

without issuing notice to the respondent, if it is

satisfied that the appeal has no merit. Sub-rule (1) does

not however state that such dismissal can be without

assigning any reasons.

6. Sub-rule (4) provides that where the appellate court,

not being the High Court, dismisses an appeal under sub-

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rule (1), it shall deliver a judgment recording in brief,

its grounds for doing so. Sub-rule (4) by implication

therefore provides that if the appellate court is the High

Court, and it chooses to dismiss a first appeal at the

stage of preliminary hearing, without issuing notice to the

respondent and without calling for records, it need not

deliver a formal brief judgment as is required by other

appellate fora. A `judgment', even a brief one, which is

required to be rendered by appellate courts other than High

Courts, should necessarily refer to the pleadings, nature

of relief, the points for consideration and the decision

thereon. But sub-rule (4) does not say that if the

appellate court which dismisses the appeal is the High

Court, no reasons be assigned for dismissing the appeal.

Sub-Rule (4) of Rule 11 does not enable the High Court to

dismiss first appeals by one line orders to the effect that

`appeal is dismissed' or by non-speaking orders. The order

of the High Court dismissing the first appeal should be

sufficiently reasoned to disclose the application of mind

to the grounds of appeal and make out that the High Court

was resorting to dismissal in limine as it found the appeal

either to be vexatious or wholly without merit. Order 41

Rule 11 of the Code, while relieving the High Court from

the obligation to write a `judgment', does not dispense

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with the obligation to assign reasons in brief, when

summarily dismissing the appeal.

7. Unless the order is reasoned, there will be no way of

knowing whether the appellate court has examined the appeal

before deciding that it did not deserve admission. As a

limited right to appeal to Supreme Court is available

against the appellate judgments of the High Court, unless

there are reasons in the order of dismissal, it will not be

possible for the Supreme Court to examine whether the High

Court has rightly rejected the appeal. The appellant who

has filed the first appeal in pursuance of a statutory

right to file such appeal, paying necessary court fee, can

legitimately expect reappreciation of the evidence and re-

determination of the questions raised, unless the statute

providing for the appeal provides otherwise.

8. This court has repeatedly pointed out that any

dismissal of an first appeal even at the preliminary

hearing stage, should be supported by brief reasons. In

Kiranmal Zumerlal Borana Marwadi vs. Dnyanoba Bajirao Khot

- [1983 (4) SCC 223] this court observed :

"As numerous points both of law and facts appear to have been raised in the appeal, which again were sought to be canvassed before us, in fairness to the parties and to us, some reasons ought to have appeared in the judgment indicating what appealed to the High

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Court to be in entire agreement with the learned trial Judge. Let it be remembered that it was the first appeal against the decision of the trial Court and therein the appellant can and has raised serious questions of law and disputed decision on facts. We, therefore, think that this is pre-eminently a fit case which ought to have been admitted and disposed of on merits."

In Jayanmti De vs. Abani Kanta Barat - AIR 2000 SC 3578,

this Court observed thus :

"We are not satisfied that the High Court has considered the appeal on merits. Even if the dismissal is under Order 41 Rule 11 and the High Court is not required under Sub-rule (4) to record in brief its grounds for doing so, it is not a carte blanche to enable the appellate court to avoid recording any reason whatsoever. We think that the appeal required consideration on merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal of the same on merits and in accordance with law by stating the reasons."

9. Under section 54 of the LA Act, a party aggrieved by

the award of the Reference Court is entitled to file an

appeal against the award of the Reference Court as of

right. Such appeals which mostly relate to the correctness

of the quantum of compensation or apportionment, raise both

questions of facts as well as questions of law. The

provisions of Order 41 of the Code are made applicable to

such appeals. The High Court, should therefore, if it wants

to dismiss an appeal summarily without issuing notice,

assign brief reasons, though not required to render a

`brief judgment'. Subject to the requirements and

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limitations placed by the statute providing for the

appeals, appeals may be disposed of summarily, where so

provided. `Summary decision' refers to a decision which is

short and quick and not elaborate. But it does not mean

`non-reasoned dismissal', as any order appealable in law

has to be reasoned. A dismissal in limine refers to

dismissal at the outset. Summary dismissal or dismissal in

limine does not refer to a dismissal without assigning

reasons.

10. In this case the Land Acquisition Collector has

awarded Rs.10,250 per bigha. The Reference Court awarded

Rs.1,10,250 per bigha. The Reference Court stated that one

bigha is equivalent to 2250 sq.yds. and it was awarding

Rs.45/- per sq.yd. On that basis, that is at the rate of

Rs.45 per sq.yd. the price of a bigha comprising 2225

sq.yds. would be Rs.1,01,250 and not Rs.1,10,250. Thus even

without a detailed examination, there is an error apparent

on the face of the award of the Reference Court. The other

grounds raised by the appellant also deserved examination

and consideration, particularly having regard to the fact

that several other appeals relating to the same

notification, against similar fixation of market value by

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the Reference Court were already admitted by the High Court

and pending consideration.

11. We may refer to another unconnected but relevant

aspect relating to the use of locally prevalent units of

measurement. A `bigha' as a unit of measurement varies in

extent in different parts of India. The Advanced Law

Lexicon (P. Ramanatha Iyer: 3rd Edition, Vol.1; page 528)

states that in upper India, one bigha refers to 3025 sq.yd.

of land, whereas in Bengal, it is equal to 1600 sq.yd. We

are informed in Delhi and Punjab, a Bigha equals 1008

sq.yd. The Reference Court states that a bigha is equal to

2250 sq.yds. In public documents, deeds of conveyance and

judicial orders, it is advisable to use units of

measurement which have the same meaning in all parts of the

country. For example, the term `gunta' is prevalently used

to refer to one-fortieth of an acre in Maharashtra,

Karnataka and Andhra Pradesh. But the word refers to the

same extent of measurement in all states. On the other

hand, a word like `Bigha', describing a unit of measurement

which refers to different extents in different states, or

different parts of the same state, should be avoided.

Description by standard units of measurement will be the

solution. Be that as it may.

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12. We are of the view that the appeal filed by the

appellant raised sufficient grounds which require to be

dealt with and decided by the High Court on merits. We

therefore allow this appeal, set aside the judgment of the

High Court and remand the matter to the High Court for

disposal of the appeal on merits.

...................J. [ R.V. RAVEENDRAN ]

NEW DELHI ...................J. APRIL 25, 2011 [ A.K. PATNAIK ]