P L D 2000 Supreme Court (AJ&K) 34 (PLP)

SARDAR SAID MUHAMMAD KHAN, C:J.--The above entitled appeals have been directed against the judgment and decree of the High Court dated 13-11-1998, whereby the appeals led by the appellants, herein, were dismissed. As the above entitled appeals, arise out of single judgment of the High Court, we propose to dispose of the same through this consolidated judent.

2. The brief facts of the case are that the land was acqred by the Government and iniclly the Collector, Land Acquisition fixed the price of the lanas Rs.48,000 per Kanal plus 15% "Jabrana". The appellants, herein, and the respondents initiated cross references before the District Judge who dismissed the one initiated by the appellants, herein, for reduction of compensation amount while that of respondents was accepted and the comnsation amount was increased from 48,000 to Rs.80,000 per Kana The appellants, herein, filed appeals to the High Court. A preliminary objection was raised. behalf of the respondents that the appeals did not I accompany the copy of the decree sheet ofhe District Judge and as such'ere incompetent. The High Court upheld the objection and dismissed the appeals observing that as the copies of the decree sheet of the District Judge did not company the memorandum of appeals as envisaged under rule 1, Order XLI, C.P.C. the same were not properly constituted and thatven otherwise .the impugned award did not suffer from any legainfirmity.

3. It has been contended by Mr. Riaz Tabassum, the learned counsel for the appellants, that as the memorandums of appeals duly accompanied the copy of the award made by the District Judge, which would be deemedo be a decree under section 26(2) of the Land Acquisition Act, the appeals were properly constituted. He has contended that afr the amendment in the aforesaid section, an award would be deemed to be a 'decree' therefore it was not necessary to file theopies of the decree sheet drawn by the District Judge. He has further argued that the High Cou dismissed the appeals even on merits without resolving the points raised in that regard.

4. In reply the learned counsel for the respondents, Ch. Liaquat Ali Khan, has controverted the argents. He has argued that under section 53 of the Land Acquispun Act the provisions of the Code of Civil Procedure apply to all the proceedings under the Land Acquisition Act. Thus he conteed that subsection (2) of section 26 does not dispense with the requirement of filing of copy the decree-sheet drawn by the Court of District Judge.

5. We have given due consideration to the arguments raised at the bar. It may be observed that there was no definition of word "decree" in the Land Acquisition Act prior to the amendment in section 26 in form of subsection (2) of the same. Thus, to avoid the difficulty regarding the forum of appeal to higher Courts, the aforesaid amendment was brought section

26. For convenience, subsection (2) of section 26 is reproduced below: "(2) Every such award shall be deemed to be aecree and the statement of the grounds of every such .award a judgment within the meaning of section 2, clause (2), and section 2, clause (9), respectively, of the Code of Civil Procedure, 1908. " It is evident from the above provision of law that the award under the Land Acquisition Act would be deemed to be a "drme" and, thus, here is no need drawing formal decree by the Collector or the District Judg: m cases under Land Acquisition Act. It may also be pointed out that section 53 of the Land Acquisition Act stipulates that the provisions of the CIC. would be applicable to the proceedings und the Land Acquisition kct B suect to the provisions of the sd Act. Obviously, after the amendmen, in section 26~ of the Act, the definition of the 'decree' given in the C.pC. would not make it obligatory to draw a decree sheet in the proceedings unler the Land Acquisition Act, because by virtue of the said amendment award would be deemed to be a decree. A reference may be made to she following authorities in support of the view: In case reported as Narsingh v. Secretary of State AIR 1928 Ph. 263, the appellant was allowed to file the copy of the award with he memorandum of appeal after expiry olimitation observing that it Vas incumbent upon the appellant to file a copy of award alongwitmemorand'1m of appeal, which would be deemed to be a copy of the 'decree' as stipulaed under qe 1, Order XLI, C.P.C. In case reported as Nur Din v. Secretary of State AIR 1927 Lah. 49 it was observed that after the amenent in section 26, the award of a District Judge would be "deed to be a decree" and it was incumbent upon the appellant to file the copy of the same alongwith the memorandum of appeal under Order XLI, Rule 1, C.P.C. In case reported as M. Dodla Malliah and others v. The State of Andhra Pradesh AIR 1964 Andh. Pra. 6, it has been held that an award would be deemed to be a formal expression of the decision of a Civil Coon and is, therefore, a decree within the meaning of relevant provisions of the C.P.C. for all purposes. It was observed that after amendment in section %6 of the Land Acquisition Act, any doubt with regard to an 'award' being a 'decree' within the meaning of C.P.C. stands removed. In case reported as Dilaw Hussain v. The Province of Sindh PLD 1953 Kar. 578 it was held that as an 'award' is a 'decre as envisaged under section 26(2) of the Land Acquisition Act, the executing Court should determine all the questions arising tween the parties as has been laid dovn in the relevant provisions of the Code of Civil Procedure. It is evident from the provisions contained in subsection ) of section 26 of the Land Acquisition Act and the cases referred to above that an award would be deemed to . be a decree; the copy, of the. same dulY C accompanied the appeals in the present case. Therefore, irrespective of the fact that a formal decree sheet was drawn by the District Judge, the filing Of the copy with the memorandums of appeals s not necessary. Thus, thefe was no violation of Order XLI, Rule 1, C.P.C. and the order of thHigh Court in dismissing the appeals as being incompetent due to the non-filing of the decree-sheet is not sustainable.

7. It may be pointed out that while dismissing the appeals, the observation of the High Court that on merits, the learned counsel for the appellants could not point out any illegality in the findings of the District Judge, is a casual observation and cannot be regarded to be the disposal of appeals filed before the High Cou on merits. The points raised by the appellants in the memo. of appeals before the High Court need due consideration and that can only be done by appreciating the evidence roduced by the contending parties in support of their respective contentions. In light of what ARM stated above waccept both the appeals, set aside the impugned judgment of the High Court and remand the caseo the High Court with the direion that after giving notices the parties, it shall re-hear the arguments in the appeals and decide the same according to-l. - H.B.T./457/SC(AJ&K) Appeals acce ted.