M. Santama Vs. State of Orissa and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in that respect, to save the proceeding from delay, it is directed that if the petitioner shall, appear before the land acquisition officer, on 30th april, 2003, then, learned special land acquisition officer, shall do well to fix a date of hearing and thereafter dispose of that application in accordance with law.p.k. tripathy, j.1. none appears for the petitioner. learned addl.govt. advocate is present. with the permission of the court, he went through the revision application and the impugned order.2. heard learned addl. govt. advocate.3. petitioner has ventilated his grievance against an order passed and communicated by the special land acquisition officer and rehabilitation officer (tisco). chatrapur vide no. 468 dated xi-d-47/02. 31.7.2002. the petitioner filed the civil revision within 90 days from the date of receipt of that letter under a bona fide impression that period of limitation will be counted from that date. petitioner has thus prayi'd to condone the delay of 16 days in preferring this civil revision.. under the given facts and circumstances, delay of 16 days is condoned and the application under section 5 of the limitation act (misc. case no. 139 of 2003) is accordingly allowed.4. learned additional government advocate has no objection for disposal of the civil revision. it appears from the letter no. 438/sla of the special land acquisition officer, which is the xi-d-47/02 impugned order in this revision, that application filed by the petitioner for making a reference under section 18 of the land acquisition act was rejected by the said officer without affording an opportunity of hearing to the petitioner. therefore, the aforesaid act of the special land acquisition officer is in violation of the principle of natural justice. under such circumstance, while setting aside the impugned order the special land acquisition officer is directed to dispose of that application of the petitioner after affording an opportunity of hearing to him. in that respect, to save the proceeding from delay, it is directed that if the petitioner shall, appear before the land acquisition officer, on 30th april, 2003, then, learned special land acquisition officer, shall do well to fix a date of hearing and thereafter dispose of that application in accordance with law. the special land acquisition officer shall bear in mind that this court has expressed no opinion on the merit of the application which the petitioner has filed for making a reference under section 18 of land acquisition act and he is to consider the same in accordance with law.5. in view of the above order, petitioner shall not be entitled to a fresh or further notice from the special land acquisition officer and in the event of default in appearance by the petitioner on 30th april, 2003. the special land acquisition officer shall consider merit of that application and pass appropriate order.the civil revision is accordingly allowed.a free copy of this order be handed over to learned addl. govt. advocate to impart,appropriate instruction to the land acquisition officer.