PATHUMMAL Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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K.GOPALAN NAMBIYAR,J. -
(1.) THIS appeal is against the order in I.A.2213 of 1972 in L.A.R.15 of 1971 on the file of the II Additional Sub Court,Trivandrum,dismissing the Land Acquisition Reference under section 20 of the Act,for default of appearance of the applicant.I.A.No.2213 of 1972 was entertained and treated by the court below as a petition filed under Order IX,rule 9 of the C.P.C.But the court below dismissed it on the ground that the applicant had not shown that she was prevented by sufficient cause from appearing and conducting the case.Hence this appeal.
(2.) ON the strength of the ruling of Bhaskaran,J.in Kallianikutty Amma v.State of Kerala 1974 K.L.T.107,it was contended that no appeal lies,and only a revision can be entertained against the order.The correctness of the decision and the view expressed therein have been canvassed before us.
The two material provisions of the Kerala Land Acquisition Act on which the decision should turn,are sections 59 and 60.These sections are as follows: "59 .Code of Civil Procedure to apply to proceedings before court. "Save in so far as they may be inconsistent with anything contained in this Act,the provisions of the Code of Civil Procedure,1908,shall apply to all proceedings before the court under this Act.
60. Appeals in proceedings before court. "Appeals shall lie from the award or from any part of the award of the court as if the award or part of the award is a decree,passed by a civil court under the provisions of the Code of Civil Procedure,1908,and subject to such rules as may be prescribed." The corresponding provision in the Central Land Acquisition Act I of 1894 are sections 53 and 54.These sections read:
" 53.Code of Civil Procedure to apply to proceedings before court ."Save in so far as they may be inconsistent with anything contained in this Act,the provisions of the Code of Civil Procedure shall apply to all proceedings before the courts under this Act.
54.Appeals in proceedings before court." Subject to the provisions of the Code of Civil Procedure,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 11 of the Code of Civil Procedure,1908,and in Order XLV thereof."
(3.) IT would be noticed that there is a difference between the scheme of the Central Land Acquisition Act and the Kerala Act.Under the Central Act,appeal only lies in any proceedings under the Act,to the High Court,from the award or any part of the award.Under the Kerala Act,on the other hand,under section 60,the award is by fiction be treated as a decree passed by a civil court,and an appeal against the award or part of the award is thereby provided.The scope and purpose of the fiction seems to be to provide for a right of appeal against the award.;
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