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Ramakant Bindal vs State Of U.P. And Anr. on 9 August, 1972

Allahabad High Court
Ramakant Bindal vs State Of U.P. And Anr. on 9 August, 1972
Equivalent citations: AIR 1973 All 23
Author: H Swarup
Bench: H Swarup


ORDER

Hari Swarup, J.

1. This is an application under Clause (b) of Sub-section (1) of Section 381 of the U. P. Nagar Mahapalika Adhiniyam (hereinafter referred to as ‘the Adhiniyam’) praying for special leave to appeal against the order of the Tribunal. Certain land acquisition proceedings had taken place and the matter was referred to the Tribunal and the Tribunal under the proviso to Section 392 (372?) of the Adhiniyam demanded security for costs from the claimant. The applicant (sic). The applicant objected to the demand on the ground that the proviso was not applicable as the notification for acquisition had been issued prior to the commencement of the Adhiniyam. He also prayed for referring the matter to this Court under Section 113, C. P. C. The Tribunal has held that as the claim is being decided by the Tribunal in praesenti and it could award costs, the provision for demand of security for costs under the proviso will be applicable to the facts of the present case.

It has also been held that there Is no point which may be referred to the High Court under Section 113, C. P. C. The application filed by the applicant for leave to appeal to the High Court has been rejected by the Chairman of the Tribunal.

2. Section 113, C. P. C. does not apply to the present case firstly because the Tribunal is not a Court and secondly because the Tribunal did not find any difficulty in the decision of the matter before it If the Tribunal did not find any difficulty it cannot be said that the Tribunal acted illegally in refusing to refer the matter to this Court The order is not even such a decision which could be subject to appeal under Section 381 of the Adhiniyam.

3. The claim of the applicant is undoubtedly for decision before the Tribunal and the proviso to Section 372 only requires furnishing of security for costs which may be ultimately awarded. It is not disputed by the learned counsel that the Tribunal can ultimately award costs against the claimant The contention is that the proviso is ultra vires and that it does not apply to the present proceedings as the notification for acquisition had been issued before the Adhiniyam was enforced. There is no force in either of the contentions. So far as the question of Vires’ of the proviso is concerned the Tribunal could not have gone into it and hence no appeal would lie on the ground. Once the matter is pending before the Tribunal for decision and Section 372 is applicable there is no reason why the proviso should not apply. The question of retrospcctivity does not arise in the present case as the claim has been referred to the Tribunal after the enforcement of the Adhiniyam and is pending consideration. The order of the Tribunal requiring the applicant to comply with the proviso to Section 372 cannot be said to be contrary to law. Hence, none of the grounds for an appeal contemplated by Sub-section (2) of Section 381 of the Adhiniyam is available.

4. Sub-section (3) of Section 381 of the Adhiniyam provides that no appeal shall lie unless the appellant has deposited the money which he is liable to pay under the order of the Tribunal from which the appeal is preferred. In the present case, therefore, the applicant will have to deposit the entire money before his appeal will be heard while under the proviso to Section 372 also the same thing is to be done. The matter is thus only academic and on this ground also it is not a case in which special leave to appeal should be granted. It is not denied that the claimant may be liable to pay costs awarded by the Tribunal.

5. For the reasons stated above the application for special leave to appeal is rejected.

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