P.C. Pandit, J. - (1.) SMT . Kishan Devi, Appellant, was the owner of house No. 192, in Ward No. 10, Katra Sujan Rai, Delhi. The Delhi Improvement Trust, under the Delhi and Ajmeri Gate Delhi Slum Clearance Scheme, took proceedings to acquire this house through the Land Acquisition Collector. The Chief Commissioner, Delhi, sanctioned the acquisition of this property. The Appellant then submitted an application under Section 64 -A of the U.P. Town Improvement Act, 1919, as applied to Delhi (hereinafter referred to as the Act), praying that the acquisition of the property be abandoned in consideration of the payment, by her of a sum to be fixed by the Improvement Trust, as the house was not required for the execution of the scheme. The Trust accepted this application and decided that the acquisition would be abandoned provided the Appellant paid Rs. 40/ - per square yard as the land abandonment fee. The Appellant, thereupon, enquired from the Trust as to, how they had calculated the rate' of Rs. 40/ -. The Trust, however, refused to disclose this information. The Appellant declined to pay this abandonment fee and, after serving the required notice, brought a suit against the Trust challenging the acquisition of the house in dispute and pleaded that Section 64 -A of the Act was ultra vires the Constitution inasmuch as sub -section (3) thereof authorised the Trust to fix arbitrarily any amount as abandonment fee.
(2.) THE suit was contested by the Trust on a number of grounds which gave rise to several issues, but we are at the present stage only concerned with issue No. 1, which is as follows: Whether Section 64 -A, Clause 3 or any part of it of U.P. Town Improvement Act, as extended to Delhi, is ultra vires? If so, what is its effect? The learned Subordinate Judge was of the opinion that Section 64 A of the Act in so far as it gave power to the Trust to fix any sum in consideration of which the acquisition might be abandoned, was ultra vires the Constitution. Since this matter was necessary to be decided for the disposal of the' case, he referred the following point of law for the opinion of this Court under Section 113 of the Code of Civil Procedure: Is Section 64 -A so far as that gives a power to the Defendants to fix a sum in consideration of which the acquisition of land may be abandoned ultra vires the Constitution? This reference was heard by Capoor, J. who by his order dated 24 -4 -59 held that the question regarding vires of Section 64 -A of the Act did not arise for decision in this case as the stage at which an objection to the acquisition could be taken had already passed. The learned Judge further found that even if it be held that this question did arise in the case, the impugned provision of the Act was not ultra vires the Constitution. As a result, the question so referred was answered in the negative. Against this decision, the present appeal has been filed under Clause 10 of the Letters Patent.
(3.) A preliminary objection has been raised that the order complained of does not constitute a 'judgment' within the meaning of Clause 10 of the Letters Patent and, consequently, no appeal lies from it.;