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Judgment
This Judgment has been overruled by : State of Bihar Vs. Tata Iron and Steel Co. Ltd., AIR 1995 SC 1170 : (1995) 3 JT 479 : (1995) 1 SCALE 792 : (1995) 2 SCC 4 Supp : (1995) 2 SCR 102
Das, J.—The appeal and the application in revision have been heard together. They are both directed against an order of the learned District Judge of Muzaffarpur, to whom a reference had been made under Proviso 2 to Section 49 (1), Land Acquisition Act. The reference was for the determination of the question as to whether the land proposed to be acquired, out of municipal holding No. 94 in the town of Muzaffarpur does or does not form part of a house or building within the meaning of Sub-section (1) of Section 49 of the Act. The learned District Judge has determined the question against the appellants. Hence the present appeal. The application in revision has been filed, in case it is held that no appeal lies against the decision of the learned District Judge. Before discussing the merits of the appeal, it is necessary to decide if an appeal lies against the decision of the learned District Judge. The learned Government Pleader, appearing on behalf of the Province of Bihar, has contended before us that no appeal lies against the decision of the learned District Judge. He has referred to Section 54, Land Acquisition Act, which lays down that
subject to the provisions of the Code of Civil Procedure, 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 lie in any proceedings under this Act to the High Court from the award or from any part of the award, of the Court, etc.
It has been contended that the decision of the learned District Judge is not an award as contemplated by the Land Acquisition Act and, therefore, not appealable. In support of this contention, reliance has been placed on Sarat Chandra Ghose v. Secy. of State AIR 1919 Cal. 86. It is no doubt true that the decision referred to above supports the contention of the learned Government Pleader. The earlier decision in Dalchand Singhi v. Secy. of State A. I. R. 1917 Cal. 148 has not been followed in the decision referred to above. As against the decision in Sarat Chandra Ghose v. Secy. of State AIR 1919 Cal. 86, reliance has been placed by the learned advocate for the appellants on two decisions of the Madras High Court: Venkatareddi v. Adinarayanana Rao A. I. R. 1929 Mad. 351 and Secy. of State v. Narayanaswamy Chettiar A. I. R. 1932 Mad. 55. Both these decisions rely on a decision of their Lordships of the Judicial Committee in Ramachandra Rao v. Ramachandra Rao A. I. R. 1922 P. C. 80. Their Lordships of the Judicial Committee were dealing with a dispute as to the title to receive compensation money deposited under Sub-section (2) of Section 31 of the Act. The dispute was decided by a decision of the District Judge from which an appeal was taken to the High Court of Judicature of Madras. Judgment was delivered by the High Court on 13th July 1897. Subsequently, one of the parties to the dispute brought a suit, and the question raised was if the decision given on 13th July 1897, by the High Court of Madras was a clear and complete determination as between the parties to the suit, and those claiming under them. In dealing with this question, their Lordships made the following observations:
It is urged on behalf of the respondents that the judgment cannot be so regarded, because it arose out of proceedings under the Land Acquisition Act, 1894, and for the purpose of their arguments they rely upon the case in Rangoon Botatoung Co. Ltd. v. Collector, Rangoon (13) 40 Cal. 21. There appears to be some misapprehension in the Courts in India as to the effect of this authority, which it is desirable should be removed. Under the Land Acquisition Act there are two perfectly separate and distinct forms of procedure contemplated. The first is that necessary for fixing the amount of the compensation and this is described as being an award. By Section 54 an appeal from that award or of any part of the award is given to the High Court. Rangoon Botatoung Co. Ltd. v. Collector, Rangoon (13) 40 Cal. 21 decided that in those circumstances the appeal so given was the only one open to the parties, and that even if appealed against, the award still retained its characteristics and was incapable of further appeal. The argument which succeeded in that ease emphasizes the distinction between an award and a decree, and the judgment mentions this in terms by stating that the appellants, although admitted to the High Court, could not have the right to carry an award made under an arbitration as to the value of land taken for public purposes up to this board as if it were a decree of the High Court made in course of its original jurisdiction.... When once the award as to the amount has become final, all questions as to fixing of compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons together entitled to the money is to place the money under the control of the Court, and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be. That is exactly what occurred in the present case. How the proceedings were commenced is a matter that is not material provided that they were instituted in the manner that gave the Court jurisdiction, for they ended in a decree made by the High Court and appealable to this board. It is true that in P.N., Trinayani Dassi v. Krishna Lal Dey 17 CWN 935, following an earlier case, Balaram Bhramaratar v. Sham Sunder Narendra (96) 23 Cal. 526 it was decided that an order u/s 32 may appropriately be deemed as an integral part of the award made by the Court, but their Lordships regard this as a misapprehension as to the meaning of the award. The award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has infor mation, meaning thereby people whose interests are not in dispute, but from the moment when the sum has been deposited in Court u/s 81, Sub-section (2), the functions of the award have ceased; and all that is left is a dispute between interested people as to the extent of their interest. Such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of land was represented by a sum of money paid into Court.
Relying on the aforesaid observations of their Lordships of the Judicial Committee, it has been held in (Janapareddi) Venkata Reddi Vs. (Janapareddi) Adhinarayana, that the decision of the Court of a Subordinate Judge upon a reference made to it u/s 30, Land Acquisition Act, is not an award under part III of the Act but is a decree: therefore, it is appealable as a decree. In Secy. of State v. Narayanaswamy Chettiar AIR 1932 Mad. 55, it has been held that the order of a Court on a reference to it u/s 49, Land Acquisition Act, is a decree and as such appealable. It is true that their Lordships of the Judicial Committee were not dealing with a reference u/s 49 of the Act. Their Lordships have, however, drawn a distinction between an award and a decision which has the force of a decree. In the latter case, they have held that an appeal lies as from a decree. The Calcutta decision, Sarat Chandra Ghose v. Secy. of State AIR 1919 Cal. 86 was given before the decision of their Lordships of the Judicial Committee referred to above. Though the point is not entirely free from difficulty, I see no reasons, as at present advised, to differ from the view expressed in the two Madras decisions referred to above. Obviously, it would not be open to the appellants to raise in any subsequent proceeding the question as to whether the land proposed to be acquired does or does not form part of the house, if the decision of the learned District Judge stands good. I hold, therefore, that an appeal lies against the order of the learned District Judge.
Coming now to the merits of the appeal, it is clear to me that what is proposed to be acquired is part of a house. Municipal holding No. 94, a part of which is to be acquired, consists of a house comprising some rooms, an open verandah and a small piece of land in front of the verandah. It appears that there is a big house which opens on two different roads. This house has been divided into two self-contahied parts and holding No. 94 is that part of the house which opens on to Kawari Tola lane. It is for the extension of that lane that the acquisition is proposed. The proposed acquisition relates not merely to the small piece of open land, but also to the verandah in front of the house. I find it very difficult to understand how it can be said that the verandah is not a part of the house. The learned District Judge held a local inspection, and he has noted that there are two or three doors opening on the verandah. The learned Dis-trict Judge has drawn an inference adverse to the appellants from the fact that at the time when he visited the locality, he found that the doors opening on the verandah were closed. The mere fact that the doors opening on the verandah were closed at a particular time does not show that the verandah has no utility. In my opinion, the learned District Judge is clearly in error in drawing such an inference. There are two rooms adjoining the verandah, and it is obvious that a person wishing to come on to the verandah from those two rooms must come through the doors opening on the verandah. In deciding the question as to whether the land proposed to be acquired is part of a house or not, the Court shall have regard to the question whether the land is reasonably required for the full and unimpaired use of the house. In Dalchand Singhi v. Secy. of State AIR 1917 Cal. 148, it has been held that godowns necessary as residence for servants are part and parcel of a building within the meaning of Section 49 (1) of the Land Acquisition Act: the acquisition of such go-downs would thus be an acquisition of a part of a house contrary to the provisions of the Act. In the present case, the appellants had, at one stage of the proceedings, expressed their willingness to the acquisition of the open land in front of the house leaving the verandah intact. We had given the parties time to settle the matter, if possible. The learned Government pleader has, however, intimated to us that it would not be possible to settle the dispute in the manner suggested by the appellants. Obviously, for some reason or other, the acquisition of the verandah is also considered necessary by the land acquisition authorities. I have no doubt in my mind that the front verandah is a part of the house on holding No. 94, and the verandah as well as the open land in front are necessary for the full and unimpaired use of the house in question.
That being the position, the appeal must be allowed. The order made by the learned Judge is set aside. The land proposed to be acquired including the verandah is a part of the house standing on holding No. 94, and cannot therefore be acquired, by reason of the provisions of Section 49, Land Acquisition Act. The costs given against the appellants in the lower Court must be refunded, if paid, and the appellants would be entitled to their costs of the lower Court as well as oi this Court. In view of our finding that an appeal lies, the application in revision is dismissed.
Chatterji, J.
I agree.