Appeal No 1040 of 1965
Appeal by special leave from the judgment and order dated November 11 1963 of the Allahabad High Court in First Appeal No 60 of 1960
C B Agarwala and 0
P Rana for the appellant
J P Goyal and Raghunath Singh for the respondents
The Judgment of the Court was delivered by Hegde J
This appeal by the Collector of Varanasi by special leave under article 136 of the Constitution is directed against the decision dated 11 11 1963 of the High Court of Judicature at Allahabad in First Appeal No 60 of 1960 on its file which in its turn arose from the award made by Shri section B Malik District Judge Varanasi in certain land acquisition proceedings under cl
b of sub section
1 of s 
19 of the Defence of India Act 1939 to be hereinafter referred to as the Act
Before considering the contentions urged on behalf of the parties it is necessary to set out the salient facts
For the purpose of constructing the Babatpur aerodrome near Varanasi the Government acquired in the year 1946 about 500 acres of land
Compensation in respect of most of the lands acquired was settled by agreement
But in respect of the lands with which we are concerned in this appeal 4801 acres in extent no settlement was arrived at
Therefore the question of compensation in respect of those lands was referred to the arbitration of Shri section B Malik under cl
b of sub section
1 of section 19 of the Act
In view of section 191e the claimants were entitled to get as compensation the market value of those lands as on the date of acquisition
Before the arbitrator as well as the High Court the parties were agreed that on the material on the record the market value in question had to be fixed either on the basis of the sale deeds produced by the claimants or by capitalising the annual profits accruing from those lands
The arbitrator rejected the sale deeds produced before him
He adopted the method of capitalising the annual profits
On the question of annual profits also he rejected the evidence adduced on behalf of the claimants
He determined the same on the basis of the revenue 374 records for Fasli 1355 read with the evidence of the Naib Tehsildar Jawal Prasad
Aggrieved by the decision of the arbitrator the claimants went up in appeal to the High Court of Allahabad under section 191f
The High Court differed from the arbitrator as to the value to be attached to the sale deeds produced
It opined that the sale deeds produced were reliable and that they evidenced genuine transactions
The High Court fixed the compensation payable on the basis of Exh
A 42 dated 3 4 1951
The arbitrator had fixed the compensation at Rs 26454 12 0
The High Court enhanced the same to Rs 90446 3 0
It is against that decision that the Collector of Varanasi has filed this appeal after obtaining special leave from this Court under article 186
Shri Goyal learned counsel for the respondents has raised the preliminary objection that no special leave could have been granted by this Court under article 136 as the judgment appealed against was neither that of a court nor of a tribunal
According to him the High Court while acting under section 191f was a persona designata and not a court or a tribunal
His argument on this question proceeded thus Sec
191b of the Act empowers the Central Government to appoint as arbitrator a person qualified to be appointed a judge of the High Court Shri Malik who possessed the required qualifications was appointed by the Central Government to act as an arbitrator it is true that Shri Malik was District Judge of Varanasi at the time of his appointment but in law it was not necessary that the person appointed should have been a District Judge and much less the District Judge of any particular District therefore Shri Malik acted as a designated person and not as a court hence the award given by him cannot be considered either as a judgment or as a decree or order it was merely an award when the matter was taken up in appeal to the High Court the proceedings did not cease to be arbitration proceedings its original character continued even before the High Court therefore the decision made by the High Court should also be considered as an award and further the High Court in making that award should be considered as having functioned as an arbitrator
In this case it is not necessary to go into the question whether the decision of the High Court is a decree judgment or final order
Even according to Shri Goyal the decision of the High Court is a determination  as contemplated in article 136
That position he had to concede in
view of the decision of this Court in Engineering Mazdoor Sabha and another vs The Hind Cycles Ltd1
In support of his contention that the High Court while acting under section 19 1f was not functioning as a court he placed strong reliance on the decision of this Court in Hanskumar Kishanchand vs Union of India2
That case dealt with two cross appeals arising from a decision of the Nagpur High Court under section 191f
Those appeals were brought on the strength of the certificates issued 1 1963 Supp  1 SCR 6252 375 by the High Court on 25th August 1949 under sections 109 and 110 of the Civil Procedure Code
In those cases it was con tended that the appeals were not maintainable for two reasons viz a the decision appealed against is neither a decree judgment or final order and b the decision in question was not that of a court
This Court upheld both these contentions
On the second ground taken Venkatarama Aiyar J who spoke for the Court observed thus Under the law no appeal would have lain to the High Court against the decision of such an arbitrator
Thus the provision for appeal to the High Court under section 19 1f can only be construed as a reference to it as an authority designated and not as a court
 If the conclusion that the appeal under section 191f is only a reference to an authority designated and not an appeal to a court is correct then there is no doubt that this Court could not have granted special leave under article 136
Therefore the real question is whether that decision lays down the law correctly when it stated that a High Court while acting under section 191f is not functioning as a court
There was no dispute that the arbitrator appointed under section 191b was not a court
The fact that he was the District Judge Varanasi was merely a coincidence
There was no need to appoint the District Judge of Varanasi or any other District Judge as an arbitrator under that provision
191f provides for an appeal against the order of the arbitrator
The section reads  An appeal shall lie to the High Court against an award of an arbitrator excepting in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government
 It is not in dispute that in the instant case the amount fixed by the arbitrator exceeded the amount prescribed by the rules and therefore the claimants had a right to go up in appeal to the High Court
We were informed that neither the Act nor the rules framed thereunder prescribe any special procedure for the disposal of appeals under section 191f
Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court
Obviously after the appeal had reached the High Court it had to be determined according to the rule of practice and procedure of that Court
The rule is well settled that when a statute directs that an appeal shall lie to a court already established then that appeal must be regulated by the practice and procedure of that court
This rule was stated by Viscount Haldane L C in National Telephone Co Ltd vs Postmaster General1 thus When a question is stated to be referred to an established Court without more it in my opinion imports 1 376 that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches
 This statement of the law was accepted as correct by this Court in National Sewing Thread Co Ltd vs James Chadwick and Bros Ltd1
It may be noted that the appeal provided in section 191f is an appeal to the High Court and not to any Judge of the High Court
Broadly speaking Court is a place where justice is judicially administered
In Associated Cement Companies Ltd vs P N Sharma and another2 Gajendragadkar CJ speaking for the majority observed The expression court  in the context denotes a tribunal constituted by the State as a part of the ordinary hierarchy of courts which are invested with the State s inherent judicial powers
A sovereign State discharges legislative executive and judicial functions and can legitimately claim corresponding powers which are described as legislative executive and judicial powers
Under our Constitution the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions
The Constitution recognises a hierarchy of courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State
These courts can be described as ordinary courts of civil judicature
They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process
The powers which these courts exercise
 are judicial powers the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions
 The hierarchy of courts in this country is an organ of the State through which its judicial power is primarily exercised
The fact that the arbitrator appointed under section 191b is either a designated person or a tribunal as to whether he is a person designated or a tribunal we express no opinion does not in any way bear on the question whether the High Court  referred to under section 191f is a court or not
Our statutes are full of instances where appeals or revisions to courts are provided as against the decisions of designated persons and tribunals
See for example Advocates Act Trade Marks Act
Reference in this connection may usefully be made to the decisions in National 1   2   377 Sewing Thread Co Ltd vs James Chadwick and Bros Ltd1 and the Secretary of State for India in Council vs Chelikani Rama Rao and others2 Prima facie it appears incongruous to hold that the High Court is not a court 
The High Court of a State is at the apex of the State s judicial system
It is a court of record
It is difficult to think of a High Court as anything other than a court 
We are unaware of any judicial power having been entrusted to the High Court except as a court 
Whenever it decides or determines any dispute that comes before it it invariably does so as a court 
That apart when section 191f specifically says that an appeal against the order of an arbitrator lies to the High Court we see no justification to think that the legislature said something which it did not mean
We may now turn our attention to the decision of this Court in Hanskumar Kishanchand vs Union of India3 on which as mentioned earlier Shri Goyal placed a great deal of reliance in support of his preliminary objection
The principal question that arose for decision in that case was whether the decision rendered by the High Court under section 191f was a judgment decree or final order within the meaning of those words found in section 109 of the Code of Civil Procedure
The Court accepted the contention of the Solicitor General appearing for the respondent the Union of India that it was not a judgment decree or final order and that being so no certificate under sections 109 and II 0 of the Code of Civil Procedure to appeal to the Federal Court could have been given by the High Court
In that case this Court was not called upon to consider the scope of article 136
Therefore it did not go into the question whether the decision appealed against could be considered as a determination falling within the scope of article 136
In arriving at the conclusion that the decision in question is not a judgment decree or final order this Court relied on the decisions in Rangoon Botatoung Co vs The Collector Rangoon4 Special Officer Salsette Building Sites vs Dossabhai Bazonji Motiwala5
Manavikraman Tirumalpad vs Collector of Nilgris6 and Secretary of State for India in Council vs Hindustan Co operative Insurance Society Limited7
The effect of those decisions is summed up in that very judgment at pp
1186 and 1187 and this is how it is put The law as laid down in the above authorities may thus be summed up It is not every decision given by a Court that could be said to be a judgment decree or order within the provisions of the Code of Civil Procedure or the Letters Patent
Whether it is so or not will depend on whether the proceeding in which it was given came before 1 2 43 IA 192 3  4 39 IA 197 5 6 ILR 7 58 IA
378 the Court in its normal civil jurisdiction or dehors it as a persona designata
Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company vs Collector Rangoon 39 IA 197 or where it comes by way of appeal against what is statedly an award as in The Special Officer Salsette Building Sites vs Dossabhai Bezonji ILR  Manavikraman Tirumalpad vs The Collector of the Nilgris ILR  and the Secretary of State for India in Council vs Hindustan Co operative Insurance Society Limited 58 IA 250 then the decision is not a judgment decree or order under either the Code of Civil Procedure or the Letters Patent
 The decisions relied on by this Court merely lay down the proposition that the decision given by the High Court in an appeal against an award is neither a decree judgment or final order
None of the aforementioned decisions lays down the proposition that the High Court while exercising its appellate power did not function as a court 
The observation in this Court s judgment that the provision for appeal to the High Court under section 191f can only be construed as reference to it as an authority designated and not as a court does not receive any support from those decisions
Nor do we find any sound basis for that conclusion
With respect to the learned Judges who decided that case we are unable to agree with that conclusion
In our judgment while acting under section 191f the High Court functions as a court  and not as a designated person
Our conclusion in this regard receives support from the decision of the Judicial Committee in Secretary of State for India in Council vs Chelikani Rama Rao1 and others referred to earlier
Dealing with the ratio of its decision in Rangoon Botatoung Co case2 this is what Lord Shaw of Dunfermline observed at p 198 of the report It was urged that the case of Rangoon Botatoung Co vs The Collector Rangoon2 enounced a principle which formed a precedent for excluding all appeal from the decision of the District Court in such cases as the pre sent
Their Lordships do not think that that is so
In the Rangoon Case a certain award had been made by the Collector under the Land Acquisition Act
This award was affirmed by the Court which under the Act meant a principal civil Court of original jurisdiction
 Two judges sat as the Court  and also as the High Court to which the appeal is given from the award of the Court 
The proceedings were however from beginning to end ostensibly and actually arbitration proceedings
In view of the nature of the question to be tried and the pro 1 43 IA 192
2 39 IA 197
379 visions of the particular statute it was held that there was no right to carry an award made in an arbitration as to the value of land  further than to the Courts specifically set up by the statute for the determination of that value
 We have already come to the conclusion that the decision rendered by the High Court under section 191f is a determination 
Hence it was within the competence of this Court to grant special leave under article 136
But then it was urged on behalf of the respondents that in view of r 2 013 of the Rules of this Court as it stood at the relevant point of time this Court could not have granted special leave as the appellant had not applied for necessary certificate under article 133 of the Constitution
In support of this contention reliance was placed on the decision of this Court in Management of the Hindustan Commercial Bank Ltd Kanpur vs Bhagwan Dass1
Under article 133 a certificate can be asked for filing an appeal against the judgment decree or final order of a High Court
As seen earlier this Court ruled in Hanskumar Kishanchand vs Union of India2 that the decision rendered by the High Court under section 191f is not a decree judgment or final order
Hence the provisions of article 133 are not attracted to the present case
Consequently this case is taken outside the scope of the aforementioned r 2 of Order 13
As a measure of abundant caution the appellant has filed CMP 2325 of 1967 praying that this Court may be pleased to excuse him from compliance with the requirements of 013 r 2
In view of the decision of this Court in Hanskumar Kishanchand vs Union of India2 no useful purpose would have been served  by the appellant s applying for a certificate under article 133
Hence even if we had come to the conclusion that the case falls within the scope of 0 1 3 r 2 we would not have had any hesitation in exempting the appellant from compliance with the requirement of that rule
This takes us to the merits of the case
The grievance of the appellant is that the High Court erred in law in awarding compensation on the basis of Exh
The sale evidenced by that deed was effected in the year 1951 nearly five years after the acquisitions with which we are concerned in this case were effected
The sale in question cannot be considered as a contemporaneous transaction
The arbitrator has found that after the close of the second world war the price of landed property had gone up steeply
This finding does not appear to have been challenged before the High Court
Further under the deed in question the land sold was 26 acres in extent
The price fetched by such a tiny bit of land is of no assistance in determining the value of the lands acquired
On behalf of the respondents we were asked to determine the compensation of the lands acquired on the basis of sale deed Exh 35 which relates to a sale that took place on 10 6 1947 1  2  380 which according to the respondents can be considered as a contemporaneous sale
We are unable to accept this contention
35 relates to the sale of land measuring 28 acres
The vendee under that deed is one of the claimants
There is no evidence as to the nature of the land sold under that deed
Under these circumstances very little value can be attached to that document
We are also of the opinion that none of the sale deeds produced in this case can afford any assistance in determining the compensation payable to the respondents
They do not evidence sales of lands similar to the acquired lands at about the time of the acquisition
The High Court did not address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation
It rejected the evidence of the Naib Tehsildar
For reasons not disclosed
the village papers of 1354 fasli were not produced by the appellant
On the other hand the village papers of 1355 fasli were produced
In the first place those records do not show the rent payable in the year in which the acquisitions took place
The acquisitions in question were made in fasli 1354
For the reasons mentioned in its judgment the High Court felt un able to place reliance on the village papers of fasli 1355
We do not think that this Court should scan the evidence afresh for determining the just compensation payable
to the respondents
That question has to be gone into by the fact finding court
All that we need say is that the High Court was not right in determining the compensation payable to the respondents on the basis of Exh
Hence its decision cannot be sustained
For the reasons mentioned above we allow this appeal and set aside the decision of the High Court and remit the case back to that Court for disposal according to law
Before deciding the case afresh the High Court will permit the parties to adduce additional evidence on the question of compensation in particular they will be allowed to produce and prove contemporaneous sale deeds and the revenue records relating to fasli 1354
Costs of this appeal shall be costs in the cause
RKPS Appeal allowed


Summary:
The Government acquired about 500 acres of land from the respondents under the Defence of India Act 1939 and a settlement was reached in respect of the compensation to be paid for all except about 48 acres of the land
The question of the compensation payable for the remaining land was referred to arbitration under section 191b of the Act to be determined in accordance with section 191e which entitled the respondents to compensation at the market value of the land
The arbitrator considered various sale deeds produced before him but rejected these and fixed the compensation by capitalising the annual profits from the lands
In an appeal against his award by the respondents under section 191f of the Act the High Court differed from the Arbitrator and enhanced the compensation payable by fixing it on the basis of a sale deed exhibited before the arbitrator
In appeal to the Supreme Court by special leave given to the appellant Collector it was contended on behalf of the respondents by way of a preliminary objection that no special leave could have been granted by the Court under article 136 as the judgment appealed against  as neither that of a court nor of a tribunal the High Court while acting under section 191f was a persona designata and not a court or a tribunal proceedings before the arbitrator appointed by the Central Government under section 191b were arbitration proceedings leading to an award made by him when the matter was taken up in appeal to the High Court the appeal proceedings did not cease to be arbitration proceedings and their original character continued so that the decision made by the High Court should also be considered as an award and the High Court considered as having functioned as an arbitrator
Held i While acting under section 191f the High Court functions as a court  and not as a designated person
378E Hanskumar Kishanchand vs Union of India   disapproved
The High Court of a State is at the apex of a State s judicial system
It is a court of record and it is difficult to think of a High Court as anything other than a court 
No judicial power was ever entrusted to the High Court except as a court  and whenever it decides or determines any dispute that comes before it it invariably does so as a court 
That apart when section 191f specifically says that an appeal against the order of an arbitrator lies to the High Court there was no justification
for thinking that the legislature 373 said something which it did not mean
Furthermore neither the Act nor the rules framed thereunder prescribe any special procedure for the disposal of appeals under section 191f and appeals under that provision have to be disposed of in the same manner as other appeals to the High Court according to its own rules of practice and procedure
375F G 377B C Case law referred to
ii On the facts the High Court was not right in determining the compensation payable on the basis of the one sale deed as this could not be considered a contemporaneous transaction the decision of the High Court must therefore be set aside and the case remitted to that court for disposal according to law after giving the parties an opportunity to adduce fresh evidence
380D E