STATE Vs. KUNHIMALU AMMA
LAWS(KER)-1967-8-27
HIGH COURT OF KERALA
Decided on August 11,1967

STATE Appellant
VERSUS
Kunhimalu Amma Respondents

JUDGEMENT

T.C.RAGHAVAN,J. - (1.) MR .K.P.Ramunni Menon,the counsel of the respondent(the claimant ),raises a preliminary objection that this appeal by the State against a decision of the Subordinate Judge in a land acquisition reference under section 18 of the Indian Land Acquisition Act does not lie to this Court,as to the District Court;and he relies upon the division Bench ruling of this Court in Mathai Thomas v.Vasudevan Pillai Viswanathan Pillai 1565 K.L.T.616 in support of this.That was a decision under section 27 of the Travancore Land Acquisition Act corresponding to section 30 of the Indian Land Acquisition Act.In that case objection was taken on the authority of Kesava Pillai v.Uzhuthirara 1964 K.L.T.643 by Joseph,J.that in such a case no appeal lay to any court.The Division Bench overruled the said decision of Joseph,J.and held that a decision in a reference under section 30 of the Indian Land Acquisition Act was a decree,and therefore,an appeal lay to the District Court under the Civil Procedure Code and the Civil Courts Act and not to the High Court under section 54 of the Land Acquisition Act,because the decision in such a case was not an award.In the case before me the reference was under section 18,and therefore,the decision by the Subordinate Judge is an award.Section 54 of the Land Acquisition Act must therefore apply;and the appeal can lie only to the High Court.
(2.) I shall now advert to the argument of Mr.Ramunni Menon.His argument is that under section 26(2)of the Land Acquisition Act every award shall be deemed to be a decree and therefore,the Division Bench ruling must apply,and the appeal must lie to the District Court under the Civil Courts Act.This means that section 54 of the Land Acquisition Act will become a dead letter;and there will be no appeal to the High Court under that section.This cannot be the legal position.It is obvious that under section 54 an appeal against an award can lie only to the High Court;and it is also equally clear that the decision of the civil court under section 26 is an award.What the Division Bench has held is only that a decision in a refer­ence,under section 30 is not an award,but only a decree,so that no appeal lies against such a decision under sec­tion 54 to the High Court.
(3.) YET another argument of Mr.Ramunni Menon is that the provisions in the Civil Courts Act will over ride section 54 of the Land Acquisition Act.Relying on Article 254(2)of the Constitution of India,he argues that since President 's assent was obtained for the Kerala Re -enacting Act of 1958(Act XXIII of 1958)re -enacting,inter alia,the Kerala Civil Courts Act of 1957 enacted by the President as Act I of 1957 during President 's Rule,the provisions of the Civil Courts Act must override the provisions of section 54 of the I and Acquisition Act.Article 254 sets at rest the possible repugnancy of a State law against a law made by the Parliament.In clause 1 is enacted that any law which the Parliament is competent to enact will override a State law subject to the provisions of clause 2.Clause 2 then provides that on a subject in the Concurrent List a State can enact a law which is repugnant to an earlier or existing law made by the Parliament;and such law may prevail in that State if President 's assent is obtained for the said State law.It is patent that Article 254(2)will not apply to this case,because the Kerala Civil Courts Act of 1957 falls under the State List and not under the Concurrent List.I may also point out that the assent of the President may be taken even to a State enactment on a State subject,though it may not be strictly necessary.Under Article 200 of the Consti­tution the Governor can reserve even such an enactment for the consideration of the President.Therefore,to argue that since President 's assent was obtained for the Civil Courts Act it is an Act on a Concurrent subject is putting the cart before the horse.The argument is to put mildly,puerile.Again,in this case President 's assent might have been obtained to the Re -enacting Act(Act XXIII of 1958)not because every statute scheduled to the Act was on a Concurrent subject,but because one of the Acts [e.g .,the Code of Criminal Procedure(Kerala Amendment)Act of 1957] was on a Concurrent subject.Therefore,this argument has also to be rejected. I may,in conclusion,point out one instance of the application of Article 254(2)of the Constitution in obtain­ing President 's assent to the Kerala Land Acquisition Act of 1961(Act XXI of 1962 ),land acquisition being a Concurrent subject,section 60 of the Act relating to appeals(in the place of section 54 of the Indian Act)may be specially noted. The preliminary objection is overruled.;


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