1. This judgment will dispose of two Letters Patent appeals Nos. 103-D and 108-D of 1950 against the Judgment of a learned Single Judge of this Court in an appeal under Section 54 of the Land Acquisition Act.
2. Land measuring 2,626 Bighas 14 Biswas situate in village Khampur was acquired by the Government for construction of a Transmitter. The requisite notification under Section 4 of the Land Acquisition Act was issued on 9th February, 1955. Various persons, Including the appellants, who claim to be non-occupancy tenants in a part of the acquired land, put in their claims which werenone into by the Collector who gave his award on 27th February, 1956. A supplementary award was made on 13th March, 1956. The appellants, who were claimants Nos. 35 to 56 before the Collector, objected to the payment of the compensation to their landlords, contending that under the provisions of the Delhi Reforms Act 8 of 1954, they had acquired the status of Bhumidars, and as such were entitled to receive the payment of the compensation for the land In their possession to the exclusion of their landlords.
Thereupon on 23rd July, 195S, the Collector addressed a communication to the District Judge, Delhi, remitting the amount in dispute with the prayer that it be disposed of in accordance with the provisions of Section 32 of the Land Acquisition Act, 1894. The matter came up for adjudication before Shri Rameshwar Dial, Additional District Judge, Delhi. The landlords, to whom notices of the proceedings had been issued, disputing the right- of the appellants to claim compensation, contended that even on the basis of the allegations contained in the appellants application, dated 28th October, 1955, made to the collector, they had no present right to compensation, and, consequently, no further investigation was necessary. The learned Additional District Judge thereupon proceeded to try the following issue :-
'Are Mithan and others entitled to any relief, and should there be an enquiry into the allegations made in their application, dated 28th October, 1955, before the Collector, assuming that all the allegations made in the application are correct ?'
3. The appellants claimed compensation as Bhumidars, but in view of the avernment in their application, dated 28th October, 1955, that they had only applied for a declaration under Section 13 of the Delhi Reforms Act, the Court held that since the requisite declaration in their favour had not been made by the Deputy Commissioner they had no present right to claim compensation in respect of the land of which they claimed to be non-occupancy tenants. In disposing of the relevant issue, the learned Additional District Judge observed as follows:-
'Unless a declaration is obtained no rights as Bhumidars vest in non-occupancy tenants. No interest is, therefore, created in the land, and as such they do not have any present right to claim compensation which represents the money value of the acquired land. If at any subsequent time, the declaration is granted, and it is further established that the declaration has retrospective effect as to' have vested proprietary rights in them on the date of the enforcement of the Act, it should not be difficult for them to claim relief against persons to whom compensation may be paid. These rights are left unaffected by the Land Acquisition Act. The Court is not empowered to postpone the matter till the declaration is obtained....'
4. Aggrieved by this decision of the Court, dated 8th December, 1956, the non-occupancy tenants preferred an appeal to this Court under Section 54 of the Land Acquisition Act. It came up for hearing before a learned single Judge of this Court and was dismissed on 3rd October, 1960. As the appellate Judgment shows, the contention put forward before the learned Single Judge was that though in their application, dated 28th October, 1955, to which a reference is made in the relevant issue quoted earlier, the appellants had asserted that they had merely applied for grant of Bhumidari rights, the position had changed since then and they had,' in fact, acquired Bhumidari rights entitling them to claim compensation. The learned Single Judge, however, found that there was nothing whatsoever on the record to prove that the appellants had acquired Bhumidari rights, and after noting that even the gazette notification, which was claimed to have been issued in the appellants' favour, had not been produced, he affirmed the findings of the Additional District Judge and dismissed the appeal. Aggrieved by this decision of Tek Chand J., dated 3rd October, I960, two sets of appeals under Clause 10 of the Letters Patent have been preferred.
5. Bafore dealing with the merits of the appeals, it is necessary to dispose of the preliminary objections raised on behalf of the respondents. It is contended that L.P.A. 103-D of 1960 has abated as Chhelu, son of data, appellant No. 2, had died prior to the institution of the appeal on 25th August, 1959, and his legal representatives had not been brought on record. The fact that Chhelu had died prior to the institution of the appeal is not disputed, and on perusal of the record, we find that the appellants' counsel, Shri R.S. Naruta, did not hold any power-of-attorney from him. In these circumstances, there is no valid appeal on his behalf, and there is thus no question of impleading his legal representatives. This, however, does not affect that right of his co-appellants, who claim separate and individual interest in the acquired property.
6. The other preliminary objection, which is common, to both the appeals is that no Letters Patent appeal is competent against the Judgment of the Learned Single Judge passed on appeal under Section 54 of the Land Acquisition Act. Reliance in this connection is placed upon the recent decision of the Supreme Court In Union of India v. Mohindra Supply Co., AIR 1962 SC 256 where it was held that no appeal under Clause 10 of the Letters Patent lies against the judgment of a Single Judge passed on an appeal under Section 39 of the Indian Arbitration Act. This decision, - however, proceeds upon the wording of Sub-section (2) of Section 39 of the Indian Arbitration Act, 1920, which expressly provides that no second appeal shall lie from order passed in appeal under Sub-section (1) of Section 32, except an appeal to the Supreme Court.
7. The provision regarding appeals against the award of the Court under the Land Acquisition Act is contained in Section 54 of that Act, which runs as follows :-
'Subject to the provisions of the Code of Civil Procedure, 1903 (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 (5 of 1908), and in Order XLV thereof.'
8. It will be noticed that this section does not contain any prohibition against filing a second appeal as Is found in Sub-section (2) of Section 39 of the Indian Arbitration Act. The word 'only' occurring in Section 54 of this Land Acquisition Act does not Indicate that only one appeal is provided against the award of the Court, but emphasizes the fact that the forum of appeal In all such cases would be the High Court.
9. A similar question came up for consideration before a Division Bench of the Lahore High Court presided over by Shadi Lal C. J. In Har Dial Shah v. Secy, of State, ILR 3 Lah 420 : (AIR 1923 Lah 275), and it was held :-
'It is beyond dispute that Clause 10 of the Letters Patent gives in express terms a right of appeal, and Icannot hold that that right has been impliedly taken awayby Section 54 of the Land Acquisition Act, more especiallywhen I find that the section is merely an enabling sectionand was enacted, in order to give a right of appeal to HisMajesty in Council, which right was not, as held by theirLordships of the Privy Council in Rangoon Botatoung Co.,Ltd. v. Collector of Rangoon, 1LR 40 Cal 31 (PC) recognized by the old section, as it existed prior to the Act of1921. The object of the amendment was to extend thescope of the right of appeal and not to curtail any existing right.'
10. This decision was followed in Collector of Dacca v. Gholam Kuddus, AIR 1936 Cal 688, and Narayandas Daga v. Ganpatrao, AIR 1944 Nag 284. No decision to the contrary has been cited. We, accordingly, overrule the objection to the competency of the appeal.
11. Besides assailing the judgment on merits, the appellants' learned counsel contended that the learned Single Judge had no jurisdiction to hear the appeal. In this connection tie referred to Rule 1 (v) of Chapter 3-B of the Rules and Orders of the High Court, Volume V, which provides :-
'Subject to the provisos hereinafter set forth for following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone:-
(v) an appeal under the Land Acquisition Act if the amount involved in the appeal does not exceed Rupees 5000/-. ......'
12. No such objection to the jurisdiction of the learned Single Judge to hear the appeal was taken either in the course of the hearing before him or even subsequently when a petition for review was presented to him by the appellants themselves. Even in the grounds of the present appeal, this point was not put forward, and we see no justification for permitting the appellants to take up this new plea at such a belated stage, especially when the use of the word 'ordinarily' in the relevant rule Indicates that there is no absolute bar to such, an appeal being heard by a Single Judge.
13. Coming to the merits, the appellants' counsel, Shri R.S. Manila, complained that the learned Single Judge had not properly appreciated the question that required his consideration, and he ignored the fact that the issue that the Additional District Judge was called upon to decide was merely whether an enquiry into the allegations contained in the appellants' application, dated 28th October, 1958, was necessary, and not whether the appellants had proved that they were Bhumidars. In their application, dated 28th October, 195S, the appellants had asserted their claim to the compensation on the plea that they had applied to the Deputy Commissioner for being declared as Bhumidars, and on obtaining' the requisite declaration they would be entitled to all the benefits of Bhumidar' rights with retrospective effect from 20th July, 1954, when the Delhi Land Reforms Act, 1954, came into force.
The learned Additional District Judge found that even If the appellants' allegation that they had applied for grant of Bhumldari rights be correct, they were rot entitled to claim compensation, as they had no present right 1o it. The appellants seem to have realized the weakness of their case and, as the-judgment under appeal goes to show, when the matter came up before the learned Single Judge they took up the position that a declaration under Section 14 of the Delhi Land Reforms Act 8 of 1954 had been issued, and they had thus acquired the Bhumidari rights, entitling them to receive the compensation. They, however, failed to satisfy the learned Single Judges aboutthe correctness of their assertion, and finding that even a copy of the notification, alleged to have been issued in the appellants' favour, had not been produced, the learned Judge dismissed the appeal.
The relevant part of his judgment runs as follows:
'The argument which has been canvassed by the learned counsel for the appellants is that his clients have become Bhumidars with retrospective effect and, therefore, they alone are entitled to receive compensation to the exclusion of the landlords. There Is, however, no material before me at all in substantiation of this allegation. According to the statement of the learned counsel for the appellants made at the Bar Bhumidari rights were granted to his clients on 23rd June, 1956, and they were given retrospective effect from the date of the enforcement of the Act, i.e., from 20th July, 1954. It is rather extraordinary that no evidence has been placed on the record of this case in support of this claim on the part of appellants Nos. 1 to 21, although it is alleged that their status as Bhumidars was recognized as early as 23rd June, 1956 .....'
14. It appears to us that realizing the validity of the opposing contention that mere making of an applica tion for being declared as Bhumidars did not invest the appellants with any right to claim compensation, they deliberately shifted their stand when the matter came up in appeal before the learned Single Judge, and took up the position that their application had been accepted and they had, in fact, acquired the Bhumidari rights in the land. Having failed to substantiate their plea about the acquisition of Bhumidari rights before the learned Single Judge, as well as in this appeal, the appellants cannot be permitted to assail the award of the Additional District Judge on a different ground. It is a well-recognized rule that in an appeal under the Letters Patent, an appellant is not entitled to be heard on a point which had not been raised before the Judge from whose judgment he is appealing Reference in this connection may be made to Mohd. Taq v. Haji Abdul Rahman, AIR 1923 Lah 151, and Teja Singh v. Gurcharan Singh, AIR 1930 Lah 632.
15. Even otherwise, we are of the opinion that the decision of the learned Single Judge dismissing the appeal was correct. The appellants could not claim the compensation without proof of the fact that they had acquired Bhumidari rights, and the learned Additional District Judge acted rightly in rejecting their claim, but observing that if at any subsequent time the declaration Is granted to the appellants with retrospective effect ft would not be difficult for them to claim compensation. The real grievance of the appellants in this appeal appears to he that their right to receive compensation afler Bhumidari rights are conferred on them (which was recognized by the Additional District Judge) had been prejudiced by the observations wade by the learned Single Judge in his order. We, however, see nothing In the judgment under appeal to Justify this apprehension. The learned Single Judge, while dismissing the appeal, had affirmed the findings of the Additional District Judge, and the position remains the same as it was when that appeal was filed.
16. For the reasons stated above, we find no force in any of these appeals, and dismiss both of them with costs.