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1995 Supreme(Del) 275
High Court Of Delhi
MAHLI DEVI - Appellant
Versus
CHANDER BHAN - Respondent
L.P.A. 18 of 1981
Decided On : 03/23/1995
amicus curiae, ARUN MOHAN, G.N.AGGARWAL, N.S.VASHISHT, P.L.Kalra
Headnote:Delhi High Court Act - Section 10 — Letter patent appeal against the order of single Judge passed in appellate jurisdiction under Section 54 of Land Acquisition Act — Maintainable — Non obstinate clause contained in Section 54 does not bar the right of appeal to Division Bench. (Para 12 to 20)
Land Acquisition Act 1894 - Section 54 — Appeal under — Disposed by a Single Judge of the High Court — Appeal against the order of single Judge to Division Bench is maintainable — Non obstinate clause does not bar the right of appeal to Division Bench but only restrict the forum of appeal. (Para 12 to 20)
Held:
1. Unless a statute itself bars a second appeal in the High Court or makes the judgment of a Single Judge of the High Court final (as in case of Section 43, Delhi Rent Control Act), a Letters Patent appeal will lie from a judgment of the Single Judge of the High Court to the Division Bench of the Court. Section 54 of the Act does not contain any such bar and, thereforee, an appeal under clause 10 of the Letters Patent will be maintainable.
2. Once an appeal comes to this Court rest of the proceedings will be in accordance with the rules of practice and procedure of this Court and in accordance with the provisions of the Charter, i.e. the Letters Patent. The only exception will be when a statute specifically bars such an appeal. The Statute in this case, i.e., Section 54 of the Act does not contain any specific bar to the right of second appeal. It follows that the second appeal under the Letters Patent, will be available to the party concerned.
3. A decision given on concession made by the parties, even though the principal conceded was accepted by the Privy Council without discussion, cannot be given same value as one given upon a careful consideration of all the relevant material. A judgment which proceeds on a concession and not on any analysis or examination of the relevant provisions could not be helpful.
[State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997 and Lakshmi Shanker Srivastava v. State, (Delhi Admn.) AIR 1979 SC 541 referred to and relied upon.]
4. There has been a consistent view upholding the maintainability of Letters Patent appeal for about 75 years now. Such consistency over such a long period of time by itself is a strong reason why the said view should not be departed from.
( 1 ) THE question for consideration by the Full Bench is whether a Letters Patent appeal under Clause 10 of the Letters Patent applicable to this court is maintainable in view of the provisions of Sec. 54 of the Land Acquisition Act, 1894 (hereinafter REFERRED TO to as the Act ). The reference has arisen on the basis of an objection raised by the learned counsel for the respondent questioning the maintainability of the present appeal. Reliance was placed on two judgments of Division Benches of this court in L. P. A. No. 97 of 1980 (Basant Kumar vs. UOI) and L. P. A. 148 of 1988 (Jugti (deceased) through LRs. vs. UOI ). These judgments are based on a judgment of the Supreme Court dated 30. 7. 1987 in Civil Appeals No. 1663 to 1668 of 1982 Baljit Singh etc. vs. State of Haryana, holding that a Letters Patent appeal is not maintainable against the judgment of a Single Judge of the court. It is noted in the referring order dated 22. 8. 1994 that the said Supreme Court decision arising in the context of proceedings under the Land Acquisition Act was based on a concession. It was conceded before the Supreme Court that a Letters Patent appeal did not lie against a judgment of a Single Judge of the same court. In view of the fact that the Supreme Court decision is based on a concession, as also in view of certain other decisions noticed in the referring order this reference was made by the Division Bench to the Full Bench.
( 2 ) SINCE the matter is of considerable importance relating to the procedure of this court, we proceed to answer the reference, though we cannot help noticing the fact that in this very appeal in which the reference order was passed, a Division Bench of this court had earlier through a reasoned order passed on 25. 1. 1992 rejected the objection of the respondent regarding maintainability of the appeal. In all fairness the counsel for the parties should have brought the said order to the notice of the Bench at the time the reference order was passed on 22. 8. 1994. The same counsel who are appearing for the parties at present had appeared before the court when the objection about the maintainability of the appeal was decided. Yet when the same objection was raised again on 22. 8. 1994 before the Division Bench, the earlier order was never brought to the notice of the Court.
( 3 ) COMING to the merits of the case it is necessary first to refer to the statutory provisions. Section 54 Land Acquisition Act runs as under:-
"54. 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 XLV thereof. "clause 10 of the Letters Patent:-
"and We do not further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act; and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgm
