Kanagasunderam V. Podihamine
1940 Present : Howard C.J., Moseley S. P. J,
and Soertsz J.
KANAGASUNDERAM v. PODIHAMINE.

187-C. R, Avissawella, 20.

Appeal-Order of costs-Land Acquisition Ordinance, s. 31 (1) (Cap. 203).
There is no right of appeal to the Supreme Court from an order of taxation of costs made under section 31 (1) of the Land Acquisition Ordinance.
Government Agent, Uva v. Banda (13 N. L. R. 341) not followed.
THE Government Agent and the defendants agreed as to the amount of compensation to be allowed under section 9 of the Land Acqui­sition Ordinance (Cap. 203) ; but, as the first defendant claimed the entirety of the compensation while the second claimed one-twenty-fifth of it, the third one-tenth, the fourth one-fourth, and the fifth one-fortieth, the Government Agent referred the matter under section 11 of the Ordinance to the Court of Requests. In the statements of claim filed in Court, the third defendant claimed the value of the plantation. After inquiry the Commissioner awarded the compensation deposited in Court less the costs of the Crown to the first defendant. In the taxation of costs under section 31 of the Ordinance the Court fixed the costs incurred by the Crown at Rs. 12.75. The first defendant appealed against the order of costs.
The Counsel for the respondent objected to the hearing of the appeal on the ground that there was no appeal from an order of taxation made under section 31 (1) of the Ordinance. The appeal was ultimately referred to a Bench of three Judges on the preliminary objection.
H. H. Basnayake, C.C., for the respondent.-The Land Acquisition Ordinance is a special statute which creates special machinery for deter­mining disputes between the acquiring authority and the persons whose lands are acquired. The District Court and Court of Requests are special tribunals for the purposes of the Ordinance and can exercise when acting thereunder only the powers given by the Ordinance. The powers and procedure under the Civil Procedure Code are not available except where they are expressly conferred.
[SOERTSZ J.-What is the procedure in Court of Requests land acquisition cases?]
By section 11, Court of Requests have jurisdiction similar to the District Court.
[SOERTSZ J.-In uncontested money cases there is no right of appeal under section 833 of the Civil Procedure Code, is there?]
This is not a land case nor a money case. In an uncontested money case costs would be Rs. 10.
Right of appeal is given in various Ordinances. Vol. V., Chapter 53, Municipal Councils Ordinance the appeal section is 124 (3). Section 32 of the Land Acquisition Ordinance is not capable of extension so as to give a right of appeal. Rights must be specially conferred. Rules of procedure and practice cannot be extended. Right of appeal must be express, and cannot be implied or inferred. Section 32 cannot in the light of authority be extenred. G.A., Uva v. Banda 1 does not apply to the present case. An appeal is a right of entering a superior Court and invoking its aid.
(A. G. v. Simona at page 1209). G. A., Uva v. Banda was decided before section 30 was amended by 1911 Ordinance. Pitche Thamby v. Mariker 18 N.L.R. at page 117 deals with special right of appeal. There is no right of appeal where Legislature does not give a right of appeal. Creation of new right of appeal is plainly an act which needs legislative authority. A. G. v. H. J. Sillem 2 vide Revised English Reports 11 at page 1207. Appeal does not lie unless expressly given by the statute (King v. Joseph Hanson.3) Appeal cannot be given by implication, but must be given by express words (Queen v. Stock; 8 Adolphus & Ellis 405 4). Under the Housing and Improvement Ordinance there is no right of appeal from a District Court to the Supreme Court, only a District Court may state a case
(32 N. L. R. at page 92 Sangarapillai v. Municipal Council, Colombo). In maintenance cases, only orders from certain sections are appealable.
(Kathirasipillai v. Subramaniam.5)
Court of Requests provides for taxation by chief clerk (section 833, Civil Procedure Code). Section 214 will not apply to Court of Re­quests. There must be a statutory right of appeal (Rangoon. Co., Ltd. v. Collector, Rangoon; Law Reports Indian Appeals (Vol. 39, page 139.6) In Special Officer v. Mottlavalla, it was held that proceedings under Land Acquisition are under a special statute. In In re Said Bank Trustees 8 -a case under Land Clauses Consolidation Act-the Court has no jurisdiction over a taxing master. Even in matters of review the statute must give power of appeal. Costs must be given by statute. Section 30 of Land Acquisition Ordinance provides for costs. The Court has no inherent power to grant costs. (Vol. IV. Encyclopaedia of England, 3rd e., p. 66.) Commissioner of Requests has no right to review the taxation by the chief clerk. Section 55 of the Civil Procedure Code speaks of " chief clerk or secretary". The Secretary refers to District Court and chief clerk to Court of Requests.
N. Nadarajah, for appellant.-At the time the Acquisition Ordinance was passed rule 41 gave a right of appeal. Rule 41 was incorporated under section 32 of the Land Acquisition Ordinance. Ordinance No. 2 of 1889 re­pealed rule 41, and sections 208-214 of the Civil Procedure Code (Ordinance No. 2 of 1889, took its place. Section 214 of the Civil Procedure Code reproduces rule 41. Re the jurisdiction regarding costs 13 N. L. R. 341

Foot Notes:
1 13 N. L. R. 241. 5 7 C. L. W. 94.
2 10 H. L. Cases 703. 6 14 Bombay L. R. 83.3.
3 4 Barnwell and Alderson 518. 7 14 Bombay L. R. 1194.
4 112 English Reports S92. 8 3 Q. B. L. R. para. 1.
(G. A., Uva v. Banda) a full bench decision is binding. There is a right of appeal, vide Wood Renton J. at page 344. Court of Requests procedure is at Part (X.), Civil Procedure Code. Section 833 of the Civil Procedure Code does not contradict the sections regarding costs. Section 214 of the Civil Procedure Code refers to registrar or secretary or chief clerk as the case may be. Section 214 applies to the Court of Requests too. In Schedule I. of the Civil Procedure all repealed rules are set out. The case G. A., Sabara-gamuwa v. Asirwathan1 held that rules in sections 18 and 32 are still existing. In 39 Indian Appeal Cases at pp. 197 and 200, that an appeal does not exist as of right. Section 32 of the Land Acquisition Ordinance is wide enough to include sections 209-215 of the Civil Procedure Code. It is too late in the day now to say there is no right of appeal specially after sections 30 and 29. Section 31 lets in the entire machinery by which the Civil Procedure Code functions. The House of Lords Case can be distin­guished. It deals with " process practice and mode of pleadings ".
[SOERTSZ J.-Sections 26 and 35 of the Ordinance are necessarily superfluous then if right of appeal lies ?]
No. They are necessary. The Land Acquisition Ordinance has special machinery. Section 30, sub-section (1), deals with costs. Inquiry under section 11 is subject to an appeal under section 14. Section 34 deals with apportionment "inter se only". Section 31 allows the taxation of the bill. (Vide Walter Pereira, pp. 133 and 134, Vol. L, 1913). Similar legislation need not be referred to. Therefore the cases cited cannot help.
H. H. Basnayake, C.C., in reply.-Section 32 regulates procedure and practice. Right of appeal is not procedure. See Poyser v. Miners 2.
Cur. adv. vult.
December 19, 1940.