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1959 DIGILAW 9 (GAU)

Collector of Kamrup v. Kamnkhyaram Barooah

1959-02-06

G.MEHROTRA, H.DEKA

body1959
MEHROTRA, J.: These are three applications for leave to appeal to the Supreme Court under Art. 133 of the Consti­tution against our judgment dated 10-2-1958. In our order in connection with the review petitions filed and disposed of today we have dealt with the facts of these cases elaborately. Two points' which have been urged by the counsel for the applicants are that the Subordinate Judge had no jurisdiction in reference to go into the validity of the acquisition proceedings and secondly it is contended that in view of the provision of S. 23 of Act 30 of 1952 (The Requisitioning and Acquisition of Immovable Property Act, 1952) the acquisition even if invalid, has been validated and consequently this court could not have declared the order of acquisition invalid. A preliminary objection has been taken by the opposite parties to the maintainability of these appli­cations. It is urged that the order is not a final order within the meaning of Art. 133 of the Constitution and secondly it is urged that the valuation of each of the appeals is not more than rupees twenty thou­sand, consequently appeal would not lie as a matter of right under Art. 133(l)(a) of the Constitution. So far as the question of the finality of the order is con­cerned it is necessary to examine the order. Our order is in the following terms: "Therefore the whole thing relating to the award particularly the rate or amount of compensation and respective title of the claimants, must be kept open and the matter must go back to the Collector for pro­ceeding with the acquisition according to the pro­visions of law". The order of the Subordinate Judge setting aside the award on the ground' that the acquisition proceed­ings were ultra vires has been affirmed and the order in this respect finally disposes of the contro­versy between the parties. What remains pending under our order is the acquisition proceedings and not the award. Cases where the-order of remand is made in a suit it has now been held in series of cases that such orders are not final orders, an even after the remand the matter remains to be finally disposed of and the suit remains pending, but what remains open by our orders is the acquisition pro­ceeding and not the award. Cases where the-order of remand is made in a suit it has now been held in series of cases that such orders are not final orders, an even after the remand the matter remains to be finally disposed of and the suit remains pending, but what remains open by our orders is the acquisition pro­ceeding and not the award. In this view of the mat­ter it cannot be said that our order is not a final order. As regards the second objection as to the valuation of the appeals, even if it be held that the value is below rupees twenty thousand, the case is otherwise fit for (a) certificate under Art. 133(l)(c) as it raises substantial questions of law of general importance. The point whether the Subordinate Judge has got jurisdiction to go into the question of the validity of the acquisition proceedings in reference is certainly a matter of substantial importance. It may be that when we were dealing with the matter the point was not elaborately placed before us and sufficient importance was not given to this point, but that does not mean that the point is not of substantial importance. Before us it was not seriously contested that the Subordinate Judge had no jurisdiction to declare the acquisition proceed­ing invalid as no appeal or cross objection was filed by the State. Mainly the effect was made to justify the order on the ground that the court below was justified in upholding the amount of compensation even on the finding that the acquisition was invalid which on the face of the order could not be justified. The second point raised by the Advocate General is that in view of S. 23 of Act XXX of 1953 the acquisition order will be deemed to be valid, even if it is irregu­lar. This point was not pressed before us but is of sufficient general importance. We according­ly certify that these cases are fit for appeal to the Supreme Court under Art. 133(l)(c) of the Constitu­tion. (2) H. DEKA J. : I agree. Petition allowed.