REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6442 OF 2000 SACHIDA NAND LAL @ SACHIDA NAND SHAH … APPELLANT

VERSUS

STATE OF BIHAR,  (NOW JHARKHAND) …RESPONDENT

J U D G M E N T C.K. Thakker, J.

1. The  present  appeal  is  filed  against

judgment and order dated June 22, 1999 passed

by a single Judge of the High Court of Patna

(Ranchi Bench) in Appeal from Original Decree

Nos. 228 and 229 of 1989 and confirmed by the

Division Bench on March 01, 2000 in Letters

Patent Appeal No. 362 of 1999.   

2. Shortly stated the facts of the case

are that on February 16, 1978, a notification

under Section 4 of the Land Acquisition Act,

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.

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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.

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…………………………………………………J. (C.K. THAKKER)

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

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