Devi Vs. State of Bihar  Insc 130 (13 March 2002)
Pattanaik, S.N. Phukan & S.N. Variava S. N. Variava, J.
This Appeal is against a Judgment dated 25th April, 1988.
Briefly stated the facts are as follows:
Appellant claims that by a Registered Deed of Settlement dated 24th April, 1954 the land was settled in favour of
one Dev Narayan Prasad. On 19th February 1955, by virtue of Section 3(1) of the Bihar Land Reforms Act, the land
vested in the State of Bihar. The Appellant claims that the
State has been receiving rent from the said Dev Narayan Prasad. On 9th February, 1962 the said Dev Narayan Prasad sold
the said land to the Appellant by a registered Sale Deed.
3. On 18th May, 1979 a notice was issued to the
Appellant under Section 3 of the Bihar Land Encroachment Act. The Appellant
replied to the Notice. Whilst these proceedings were pending, on 16th January 1982 a Notification was issued under
Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called the said
Act). This was followed by a Declaration under Section 6 on 25th May, 1982. The Appellant filed a claim under
Section 9 of the said Act. Similarly, the Circle Officer, on behalf of the
State, filed a claim under Section 9 of the said Act. An Award came to be
passed in favour of the Appellant on 19th February, 1985. The State filed a Reference under
Section 30 of the said Act for determination of the title. The State claimed
that they were entitled to receive compensation. On 6th September, 1986 the Land Acquisition Judge held in favour of the
Appellant. The State then filed an Appeal which was dismissed on 25th April, 1988.
State then filed a Letters Patent Appeal before the Division Bench. This
Letters Patent Appeal was allowed by the impugned Judgment dated 1st May, 1996. The case has been remanded back to
the single Judge for decision in the light of the observations made by the
When this matter reached hearing on 31th January, 2002 the following Order has been passed
by this Court:
of the questions that arises for consideration in this case is as to whether
Letters Patent Appeal was maintainable before the Letters Patent Bench against
the judgment and decree of the learned Single Judge of the High Court passed in
an appeal preferred under Section 54 of the Land Acquisition Act. In Civil
Appeal Nos. 1663- 1968 of 1982 (Baljit Singh and Ors. etc. vs. State of Haryana
& Ors.), a Bench of two Judges of this Court held that no Letters Patent
Appeal is maintainable against the judgment of the learned Single Judge of the
High Court whereas in the case of Basant Kumar vs. Union of India reportead in
(1996) 11 SCC 542, a Bench of three Judges, without adverting to the decision
in Baljit Singh & Ors. etc. vs. State of Haryana & Ors. (supra) held that
such an appeal is maintainable.
have heard learned counsel for the parties.
plain reading of Section 54 of the Land Acquisition Act, we are, prima facie,
of the view that no Letters Patent Appeal is maintainable. However, since no
reason has been assigned in the case of Basant Kumar vs. Union of India (supra)
for holding that the Letters Paten Appeal is maintainable against the judgment
of a Single Judge of the High Court passed in an appeal filed under Section 54
of the Act, we are of the view that this case requires to be decided by a Bench
of three Hon'ble Judges.
this matter be placed before Hon'ble the Chief Justice of India for appropriate
orders." Hence the Appeal has been placed before us.
the case of Baljit Singh and Ors. etc. vs. State of Haryana and Ors., two Judges of this Court
have held as follows:
short question raised is whether the Letters Patent Appeals were maintainable
under the law. The learned Counsel for the appellants agreed that such appeals
did not lie on the authority of a Judgment of this Court in Asia Industries vs.
Sarup (1965(2) SCR 756) where a four Judge bench has clearly held that such an
appeal does not lie. On this authority the Judgment of the Division Bench of
the High Court has to be vacated and consequently the decision of the learned
Single Judge has got to be restored."
Judgment in Baljit Singh's case is based on a concession. It is also based on
the judgment in Asia Industries case. The Judgment in Asia Industries case does
not deal with Section 54 of the said Act.
Asia Industries case, the question was whether a Letters Patent Appeal would
lie against a decision of the single Judge Bench passed in an Appeal filed
under Sections 39 of the Delhi Rent Control Act. Whilst considering this
question it was observed as follows:
following legal position emerges from the said discussion : A statute may give
a right of appeal from an order of a tribunal or a Court to the High Court
without any limitation thereon. The appeal to the High Court will be regulated
by the practice and procedure obtaining in the High Court. Under the rules made
by the High Court in exercise of the powers conferred on it under s. 108 of the
Government of India Act, 1915, an appeal under s. 39 of the Act will be heard
by a single Judge. Any judgment made by the single Judge in the said appeal
will, under cl.
the Letters Patent, be subject to an appeal to that Court. If the order made by
a single Judge is a judgment and if the appropriate Legislature has, expressly
or by necessary implication, not taken away the right of appeal, the conclusion
is inevitable that an appeal shall lie from the judgment of a single Judge
under cl. 10 of the Letters Patent to the High Court. It follows that, if the
Act had not taken away the Letters Patent appeal, an appeal shall certainly lie
from the judgment of the single Judge to the High Court." Thus the Court
holds that a Letters Patent Appeal will lie unless the concerned statute takes
away the right to file Letters Patent Appeal. The Court then considered
Sections 39 and 43 Delhi Rent Control Act and held that a combined reading of
the two Sections showed that the Order passed by the High Court, in an appeal
under Section 39, was to be final. It was held that the provision of finality
was intended to exclude any further appeal.
decision is thus based on interpretation of Sections 39 and 43 of the Delhi
Rent Control Act. Section 54 of the said Act has no similarity with Sections 39
and 43 of the Delhi Rent Control Act. Asia Industries case does not lay down
that a Letters Patent Appeal would not lie against a judgment passed in an
appeal under Section 54 of the said Act. Thus the case has no relevance whilst
deciding the question whether a Letters Patent Appeal is maintainable against a
judgment passed in an appeal under Section 54 of the said Act. In our view the
concession made in Baljit Singh's case was wrong.
three Judge Bench of this Court, has in Basant Kumar's case (supra) held as
next question is whether the LPA would lie against the judgment of the learned
Single Judge? It is a settled legal position that under Section 54 of the Land
Acquisition Act, the appeal would lie to the High Court; when the appeal on the
basis of the pecuniary value was decided by a Single Judge necessarily, it
being the judgment of the Single Judge, an appeal would lie to the same Court
in the form of LPA to the Division Bench. The Division Bench was not right in
holding that the LPA would not lie to the High Court against the judgment of
the Single Judge. To that extent, the view of the High Court is not
Letters Patent is the charter under which the High Court is established. The
powers given to a High Court under the Letters Patent are akin to the
constitutional powers of a High Court. Thus when a Letters Patent grants to the
High Court a power of Appeal, against a judgment of a single Judge, the right
to entertain the appeal would not get excluded unless the concerned statutory
enactment excludes an appeal under the Letters Patent.
The question which thus arises is whether Section 54 of the said Act excludes
an appeal under the Letters Patent. Section 54 of the said Act reads as under:
Appeals in proceedings before Court.- 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 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."
Mr. Sharan submits that Section 54 of the said Act contains a non-obstante
clause. He submits that the words "notwithstanding anything to the
contrary in any enactment for the time being in force" would also include
the provisions contained in a Letters Patent. We are unable to accept this
submission. A Letter Patent is not an enactment. It is the charter of the High
Court. A non-obstante clause of this nature cannot cover the charter of the
Mr. Sharan next submits that Section 54 of the said Act uses the words "an
appeal shall only lie". He submits that the words "an appeal"
show that there can be only one appeal to the High Court. He submits that the
use of the word "only" indicates that the Legislature intended that
there should be only one appeal in the High Court. Mr. Sharan submits that
Section 54 also provides that from "such an appeal an appeal shall lie to
the Supreme Court". He submits that this makes it clear that Section 54
provides for only one Appeal to the High Court and then an appeal to the
Supreme Court. He submits that on a plain reading of Section 54 it is clear
that a Letters Patent Appeal would not lie against a Judgment passed by a
single Judge of the High Court in an Appeal under Section 54.
the other hand, Mr. Mathur has submitted that a Letters Patent Appeal would
lie. He points out that almost all High Courts have taken the view that a
Letters Patent Appeal would lie against a Judgment of a single Judge passed in
an Appeal filed under Section 54 of the said Act. He relies upon the cases of Mahli
Devi vs. Chander Bhan reported in AIR (1995) Delhi 293, Mohabbat Singh vs.
Crown reported in AIR (1923) Lahore 274, Narayandas Daga vs. Ganpatrao Nehru
Technological University, Hyderabad reported in (1990) 3 Andhra Law Times 3.
our view, Mr. Mathur is right. Section 26 of the said Act provides that every
award shall be a decree and the statement of grounds of every award shall be a
judgment. By virtue of the Letters Patent "an appeal" against the
judgment of a single Judge of the High Court would lie to a Division Bench.
Section 54 of the said Act does not exclude an Appeal under the Letters Patent.
The word 'only' occurring immediately after the non-obstante clause in Section
54 refers to the forum of appeal. In other words it provides that the appeal
will be to the High Court and not any other Court e.g. the District Court. The
term "an appeal" does not restrict it to only one Appeal in the High
Court. The term "an appeal" would take within its sweep even a
Letters Patent Appeal. The decision of the Division Bench rendered in a Letters
Patent appeal will then be subject to appeal to the Supreme Court. Read in any
other manner there would be a conflict between Section 54 and the provision of
a Letters Patent.
settled law that if there is a conflict, attempt should be made to harmoniously
construe the provisions.
We, therefore, hold that under Section 54 of the said Act there is no bar to
the maintainability of a Letters Patent Appeal. We therefore agree with the
view taken in Basant Kumar's case. The reference is answered accordingly.
The case be now placed before a Division Bench for consideration of the other
VARIAVA) March 13, 2002.