Judgement

Consolidated Appeal and Cross-Appeal (No. 33 of 1930) from a decree or order of the High Court (January 21, 1929), enhancing the amount of an award in favour of the above named Society under the Calcutta Improvement Act (Ben. V. of 1911) in respect of land acquired under that Act.

00 Law Rep. 58 Ind. App. 259 ( 1930- 1931) Secretary of State v. Hindusthan C o-Op. Ins. Society, Ltd.

101

The appeal to the High Court, which is reported at I. L. R. 56 C. 989, was by the Co-operative Society under the Calcutta Improvement (Appeals) Act (XVIII of 1911).

Upon an application by the Secretary of State the High Court, on July 2, 1929, granted a certificate that the case was a fit one for appeal to the Privy Council, rejecting the contention of the Co-operative Society that no appeal lay.

The learned judges who heard the application (Rankin C.J. and Panckridge J.) followed a decision of Sanderson C.J. and Walmsley J. on May 29, 1925, upon a similar application in Secretary of State for India in Council v. Tarak Chandra Sadhukan. The Court subsequently granted a certificate as to the cross-appeal, the Co-operative Society reserving its right to contend that the appeals were not competent. Upon the above mentioned appeal of 1925 coming before the Judicial Committee the question of its competence was argued, but the appeal was dismissed upon the merits without a decision being given upon the preliminary objection see L. R. 54 I. A. 187.

1931. Feb. 9, 10. De Gruyther K.C. and Dube for the Co-operative Society. This appeal is not competent. Having regard to Rangoon Botatoung Co. v. The Collector, Rangoon (( 1912) L. R. 39 I.

A. 197.) and Special Officer v. Desabhai Bezangi Motiwala (( 1913) 17 C. W. N. 421 (P.C.)), which latter case removed any doubt whether the judgment in the former applied to an appeal under the letters patent, it is clear that there was no right of appeal to the Privy Council in this ease unless that right was given by Act XIX. of 1921.

The Act had not that effect. As s. 71 of the Calcutta Improvement Act, 1911 (which may be called the local Act) excluded the operation of s. 54 of the Land Acquisition Act, 1894, the amendment of that section cannot possibly affect the matter. The High Court held, however, that Act XIX. of 1921 by adding to s. 26 of the Act of 1894 a provision that an award of the Court under the Act of 1894 was to be deemed to be a decree had indirectly given a right of appeal under the letters patent. It is submitted that that view was erroneous. In 1911 a right of appeal to the Privy Council in cases under the Land Acquisition Act, 1894, was supposed to exist as the effect of s. 54 of that Act. Ry s. 71 the Local Act excluded the operation of s. 54 and expressly provided that the award should be final. This clearly shows an intention that there should be no appeal to the Privy Council. Act XVIII. Of 1911 gave a strictly limited right of appeal to the High Court. In these circumstances Act XIX. of 1921 should not be construed as giving a right of appeal to the Privy Council in the case of an award under the local Act in the absence of any provision to that effect either in the local Act or in the Act of 1921. The view of the High Court as to the effect of the addition made in 1921 to s. 26 of the Act of 1894 renders the amendment of s. 54 then made unnecessary.

Dunne K.C. and Wallach for the Secretary of State. The decree appealed from is a final decree of the High Court, and the onus is on those who contend that no appeal lies to the Privy Council under cl. 39 of the letters patent. The addition made by Act XIX. of 1921 to s. 26 of the Land Acquisition Act, 1894, became part of the local Act. The local Act did not merely incorporate certain sections of the Act of 1894 it provided by s. 69 that the trustees could acquire land " under the provisions of the Land Acquisition Act, 1894." Any amendment of that Act not inconsistent with the local Act became part of it. The modifications of the Act of