judgement:
Civil Appeal No.877 of 1974.
From the Judgment and Decree dated 17.11.1971 of the Allahabad High Court in First Appeal No. 171 of 1966.
D.N. Mukherjee, G.S. Chatterjee and A. Bhattacharjee for the Appellant.
Prithvi Raj and Mrs. Shobha Dikshit for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, for enhancement of compensation, by Special leave, arises out of and is directed against the judgment and decree dated 17th November, 1971 of the High Court of Allahabad in First Appeal No. 171 of 1966 affirming the Award and Decree dated 13.12.1965 of the Ist Addl.
District Judge, Varanasi, made in a Reference Under Section 18 of the Land Acquisition Act 1894.
Property known as "Gopal Lal Villa" a sprawling 60 year old building of about 25,000 square feet of plinth area comprising of 35 rooms, halls and other appurtenances, its large 23.66 acre grounds with 431 fruit and 13 Timber trees; 12 Bamboo clumps, situated on the outskirts of the City of Varanasi, originally part of the estate of Raja P.N. Tagore, and now vesting in the Administrator General, West Bengal, was acquired pursuant to the preliminary notification, published in the Gazette, dated, 4.7.1959 for the purposes of the education department of the Government of Uttar Pradesh.
Before the Land Acquisition Officer, Appellant claimed compensation of Rs.8,00,580 (at Rs.352 per decimal) for the land; Rs.3,50,000 for the building and structures; Rs.41,010 for the tree growth; and Rs.5,000 as compensation for change of residence.
The Land Acquisition Officer, however, by his Award dated 4.11.1961 under Section 11 of the Act determined the market value of the land at Rs.3,31,340 valuing it Rs. 140 per decimal (or Rs.14,000 per 1032 acre); of the building and structures at Rs.57,660 and of the treegrowth at Rs.355.83.
Appellant, not having accepted the offer contained in the award, sought for a reference under Section 18 of the Act to the Civil Court in proceedings pursuant to which the District Court enhanced the market value of the land to Rs.4,73,200 (from Rs.140 to Rs.200 per decimal) leaving the valuation of the building and the tree growth undisturbed.
The High Court has affirmed the Award dismissing appellant 's claim for further enhancement before it.
We have heard Shri D.N. Mukherjee, learned counsel in support of the appeal and Shri Prithviraj, learned Senior Advocate for the respondent.
We have been taken through the judgment under appeal and the evidence on record.
On the contentions urged at the hearing, the following points fall for consideration: (a) Whether the estimate of the market value of the acquiredland at Rs.200 per decimal is unreasonably low and is arrived at ignoring the evidence on record and settled principles of valuation? (b) Whether the valuation of the buildings and structures at a mere Rs.57,660 calls for an upward revision? (c) Whether the award made for the tree growth is inadequate and is required to be valued higher? (d) Whether appellant is entitled to the benefit of Sec.
23(2) of the Act as introduced by the U.P. Law Acquisition (Amendment) Act 1972 providing for solatium and, further, to higher rates of solatium and interest under the Central Amending Act (Act No. 68 of 1984) on the ground that proceedings were pending in appeal before this court on the dates these amendments came into force? 4.
Re: Contention (a) The acquired land had the potentiality for building purposes.
Learned District Judge found that: ".
The Land Acquisition Officer himself realised this fact and has observed that "the land under acquisition is 1033 situated within the Corporation limits in Mohalla Orderly Bazar, a thickly populated locality and is near to Kutchery.
It has, therefore, a potential value as building site.
" I may add here that though the acquired land is at a distance of about 3 to 3 1/2 miles from the main markets of Varanasi City, yet every thing of daily need and of day today utility is available in the market which exists in the locality of the acquired land.
It may also be added that the land adjacent to the west of the acquired land known as 'Tagore Nagar ' formerly formed part of this Gopal Lal Villa and both were covered by one boundary.
The land of Tagore Nagar has been divided into small portions and a colony with residential quarters has grown up there.
This was already in existence before the present acquisition . ." The determination of market value of a piece land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria.
The market value of a piece of property, for purposes of Section 23 of the Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length.
The determination of market value, as one author put it, is the prediction of an economic event.
viz, the price outcome of a hypothetical sale, expressed in terms of probabilities.
Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market value.
Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.
In the District court, appellant relied upon eight transactions of what, according to him, were sale, of similar lands.
The transactions at Ext.
18, 20, 21 and 22, dated, 25.3.1952, 1.12.1955, 11.8.1953 & 11.7.1957 respectively were rejected by learned District Judge on the ground that they were long enterior in point of time to the acquisition and lacked the element of contemporaneity.
23 dated, 25.10.1958 and Ext.
24 dated, 18.8.1960 were also held not to afford reliable evidence of market value on the ground that while in the former case the property was sold along with a construction thereon without any indication as to the apportionment of the price between the land and the construction, in the latter case the sale was about an year subsequent to the date of the preliminary notification.
1034 What remained were the evidence of sale transactions at Exts.
2 and 19 dated 16.9.1958 and 22.12.1958 respectively indicating a price of Rs.1250 and Rs.900 per biswa respectively.
The District Judge struck an average of the two and fixed the rate at Rs.1075 per biswa which worked out to about Rs.350, or thereabouts, per decimal.
But since Ext. 2 and Ext. 19 related to very small plots, the learned District Judge on some calculations of his own, fixed the rate of Rs.200 per decimal for the acquired land.
Shri Mukharji in support of the appellant 's claim @ Rs.352 per decimal submitted that the High Court, in affirming the valuation of the land at a mere Rs.200 per decimal, overlooked certain settled principles of valuation in that it approved the process adopted by the learned District Judge of striking an average of the valuations reflected in Ext.
2 and Ext.
19, while the higher of the two figures indicated by Ext. 2, should have been adopted.
Learned Counsel submitted that the acquired land, though situate about 3 1/2 miles away from the heart of Varanasi City, had all the potentiality for use for building purposes and that the rejection of the evidence of market value afforded by Ext.
24, the transaction of sale dated 14.7.1960 which indicated a price of Rs.2,000 per biswa on the ground that it was an year later than the preliminary notification was erroneous.
It is trite proposition that prices fetched for small plots can not form safe bases for valuation of large tracts of land as the two are not comparable properties.
(See Collector of Lakhimpur vs B.C. Dutta, AIR 1971 SC 2015; Mirza Nausherwan Khan & Anr.
vs The Collector (Land Acquisition), Hyderabad, [1975] 1 SCR; Padma Uppal etc.
vs State of Punjab & Ors., [1971] 1 SCR; Smt.
Kaushalya Devi Bogra & Ors.
vs The Land Acquisition Officer Aurangabad & Anr., [1984] 2 SCR.
The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective.
The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents.
However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant.
In such a case, necessary deductions for the extent of land required for the formation of roads and other civic 1035 amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made.
In Sahib Singh Kalha & Ors.
vs Amritsar Improvement Trust and Ors., (See , this court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%.
But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail ' price of land and the latter the 'wholesale ' price.
The sale transaction at Ext.
24 was an year later.
Such subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area.
Further under certain circumstances where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value.
This court in State of U.P. vs Maj.
Jitender Kumar, (See observed: ". .
It is true that the sale deed Ext.
21 upon which the High Court has relied is of a date three years later than the Notification under section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent.
In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon exhibit 21 under which the Housing Society itself had purchased land in the neighbourhood of the land dispute.
On the whole we are not satisified that any error was committed by the High Court in relying upon the sale deed exhibit 21. ." But this principle could be appealed to only where there is evidence to the effect that there was no upward surge in the prices in the interregnum.
The burden of establishing this would be squarely on the party relying on such subsequent transaction.
In the present case appellant did not endeavour to show that between the date of preliminary notification i.e. 4.7.1959 and the date of Ext.
24 i.e. 18.8.1960 there was no appreciation in the value of land in the area.
Therefore, Ext.
24 cannot be relied upon as affording evidence of the market 1036 value as on 4.7.1959.
We cannot accept the argument that the price indicated in Ext.
24 should be accepted after allowing an appropriate deduction for the possible appreciation of the land values during the period of one year.
Apart from other difficulties in this exercise, there is no evidence as to the rate and degree of appreciation in the values of land so that the figure could be jobbed backwards from 14.7.1960 to 4.7.1959.
It appears to us that even if the value at Rs.1,250 as on 27.8.1958 indicated by Ext.
2 is adopted and something is added thereto for the possible appreciation for the period till the preliminary notification, also taking into account the trend of appreciation in the prices in the area as indicated by Ext.
24 and the value of small developed sites is estimated somewhere between Rs.1,400 and Rs.1,600 per biswa or Rs.450 to Rs.500 per decimal, yet, the valuation made in the present case does not call for or justify any upward revision at all.
There is a simple way of cross checking these results.
The value of small plots Rs.500 per decimal as now estimated represents what may be called the "retail" price of the land.
What is to be estimated therefrom is the "wholesale" price of land.
In Bombay Improvement vs Mervanji Manekji Mistry, (See AIR 1926 Bombay 420) Mecleod CJ suggested a simple rule: ". .Valuation cases must be dealt with just as much from the point of view of the hypothetical purchase as of the claimant.
The valuation itself must often be more or less a matter of guesswork.
But it is obviously wrong to fix upon a valuation which, judged by everyday principles, no purchaser would be likely to give . ." ". .I have always been adverse to elaborate hypothetical calculations which are no more likely to lead to a fair conclusion than far simpler methods.
But, in any event, no harm can be done by testing a conclusion arrived at in one way by a conclusion arrived at in another . ." ". .A very simple method of valuing land wholesale from retail prices is to take anything between one and half onethird, according to circumstances of the expected gross valuation, as the wholesale price. ." (emphasis supplied) In the present case, Rs.200 per decimal for the large extent of the 1037 acquired land works out to 40% of the "retail" price even if we take, Rs.500 as the "retail" price.
That apart, in the case of land with potentialities for a more profitable use, it is necessary to acknowledge, and make due allowance for, the possibility that the land might not be applied for the prospective use at all or not so applied within a reasonable time.
There is, therefore, no justification to interfere with the determination of the market value of the land approved by the High Court.
Contention (a) is accordingly answered against the appellant.
Re: Contention (b) The District Court proceeded to value the property on the "Land and Building Method".
The appositeness of this method to the present case was not debated before us.
Usually, land and building thereon constitute one unit.
Land is one kind of property; land and building together constitute an altogether different kind of property.
They must be valued as one unit.
But where, however, the property comprises extensive land and the structures thereon do not indicate a realisation of the full developmental potential of the land, it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminarynotification and to add to it the value of the structures as at that time.
In this method, building value is estimated on the basis of the primecost or replacement cost less depreciation.
The rate of depreciation is, generally, arrived at by dividing the cost of construction (Less the salvage value at the end of the period of utility) by the number of years of utility of the building.
The factors that prolong the life and utility of the building, such as good maintenance, necessarily influence and bring down the rate of depreciation.
Hari Shanker Misra PW 3 referring to the nature and quality of the building stated: ".
The Northern part of this Villa was double storeyed and rest was single storeyed.
Its plinth was 3 feet high and rooms were 14 feet high.
The building bore 35 rooms and besides this there was a big hall 65 feet x 22 feet.
Its floor was made up of some patent stones.
Some monthly some market and Vkiya were stoned.
The doors were 8 feet x 4 feet and they were made up of Burma teak wood and up ways were double doored.
When Improvement Trust oc 1038 cupied the property of Nejai at that time building was well maintained.
Over and above the main building there were manager quarters.
Kitchen, out house, servant quarters, Chowkidar quarters and a stable.
Now they were in good condition.
Its boundary wall was 7 feet and at some places they were 8 feet high.
This also consists of 2 iron gates.
One is main gate and the other one is by its side of some distance. " Learned District Judge based his valuation almost entirely upon the report of the Chief Engineer, estimating the building at Rs.57,660.
That report itself was not brought on record in the proceedings of reference.
It is not clear from the judgment of the High Court whether this estimate of Rs.57,660 represented the cost of replacement of the structure less depreciation or whether it represented merely the salvage value of the building.
High Court rejected the Valuation Report, Ext.
1 relied upon by the appellant on the ground that it was made with reference to a date which was an year later than the preliminary notification.
The High Court observed: ".
The appellant had examined Narain Chand Das, an Overseer who had assisted the Executive Engineer, in preparing the valuation of the constructions and the well.
The report of the Executive Engineer is Ext.
1 on the record.
It appears from the said report that the valuation was determined on the basis of the rates prevailing in the year 1960 where as the preliminary notification in the instant case was issued in the year 1959.
Moreover, this building appears to be about 60 years old and the market value thereof could not be determined on the basis of the cost of constructions prevailing in the year 1960.
This method of calculating the market value of the property is obviously erroneous and cannot be accepted.
No other evidence was produced by the appellant to determine the value of the constructions and the well.
The evidence produced by him being not satisfactory, the compensation already determined by the Land Acquisition Officer in respect of this item of the property was not liable to be enhanced. ." We are afraid the estimate of the proper market value of the building has not received the requisite attention both before the High Court and the District Court.
It is no doubt true that Ext.
1 was prepared on 20.7.1960, an year after the date of the preliminary notifi 1039 cation in the present case; but the extent of the built area was about 2,500 sq.
1 gives a breakdown of the area of the various parts of the building and sets out the nature of the construction and proceeds to estimate the value in terms of the then current PWD rates less depreciation of 20%.
The rates adopted were not particular to the date of valuation i.e. 20.7.1960.
The PWD rates are operative over a period, generally for an year or so.
The extent or the quality of construction were also not in dispute.
The main building of an area of 18828 sq.
consisted of 35 rooms, and a big hall with 'Marble Flooring ', 'Burma Teak Shutters ', 'Stone Slab Roofing ', a portico with 'Glazed Gracian Pillars ' etc.
In Ext.
1, the main portion was valued at Rs.12 per sq.
Apart from the main building, there were other appurtenances such as the Managers ' quarters, kitchen house, chowkidars ' quarters, out house, stables, pucca wells etc.
The other structures have been valued area wise at much lesser rates, according as the nature of the construction.
The decendants of Raja P.N. Tagore, it was claimed, were residing in the building till a few days before possession was taken.
There is no evidence to suggest that, the rates mentioned and adopted in Ext.
1 were not rates valid for a spread out period.
It appears to us somewhat unreasonable that the extensive building of 25,000 sq.
with big halls and 35 rooms constructed with quality material, marble flooring, burma teak joinery should be valued at a mere Rs.57,660.
No case was made out that the building had lost its utility and that only mode of valuation appropriate to the case was one of awarding merely the salvage value.
The building, according to the evidence, was quite strong though about 60 years old at the time.
Having regard to the circumstances of this case, the appropriate thing to do would have been to set aside the award in so far as the valuation of the building is concerned and remit the matter for a fresh determination of its market value as on 14.7.1959.
But the parties have been at litigation for decades.
The acquisition is of the year 1959.
We, therefore, thought and put to the learned counsel on both sides whether in the interests of justice, it would not be proper to make some rough and ready estimate, drawing such sustenance as the evidence on record could afford and impart a quietus to this vexed litigation.
Learned counsel very fairly submitted that this would be the appropriate course.
In the very nature of things, the exercise that we make, must share the imperfections of the evidence on record.
But then, some element of speculation is inevitable in all valuations.
In the 1040 best of exercises some measure of conjecture and guess work is inherent in the very nature of the exercise.
We may first proceed to estimate the prime cost of the building.
The measurement set out in Ext.
1 is not disputed.
If Ext. 1 is taken as the starting point for the estimate of cost of replacment as on 4.7.1959; the depreciation of 20% allowed in Ext.
1 has to be added back and, further, some deduction towards the possible escalation of costs of construction between the date of preliminary notification and of the period of validity of the rates adopted in Ext.
1 has to be made.
On this basis, the cost of replacement could be estimated at about Rs.4 lakhs.
This works out to Rs.16 sq.
on the average.
Even in respect of 1959, this figure may not be much, having regard to the quality of the construction.
From this sum of Rs.4 lakhs, depreciation for the past life of 60 years of building would have to be deducted.
Depreciation depends upon and is deduced from factors such as the cost of the construction; the expected life span; its salvage value realisable at the end of the period of utility etc.
Rate of depreciation is generally, the prime cost less salvage value divided by the life span.
These, of course, are matters of evidence.
In the present case, if we make a rough and ready estimate of the salvage value at say, 10% of the cost and estimate the period of utility of life span of the building at, say, 90 years, the depreciation which is the annual loss of value due to physical wear and tear works out to about Rs.4,000 per year or roughly 1%.
Without going to the finer details of the calculation of the depreciation on the progressive written down values, we think, an estimate of 50% of the cost of the building may, again on a rough and ready basis, be deducted towards depreciation.
The market value of the building as on the date of the preliminary notification could accordingly be fixed at Rs.2,00,000.
Accordingly, the compensation for the buildings and structures is enhanced from Rs.57,660 to Rs.2,00,000, point (b) is held and answered accordingly.
Re: Contention (c): So far as the tree growth is concerned, it is trite proposition that where land is valued with reference to its potentiality for building purposes and on the basis of prices fetched by small sites in a hypothetical lay out, the tree growth on the land cannot be valued independently on the basis of its horticultural value or with reference to the value of the yield.
But this principle does not 1041 come in the way of awarding the timber value or the salvage value of the tree growth after providing for the cost of cutting and removing.
The evidence shows that there were 471 fruit bearing trees and plants: 13 timber trees and 12 Bamboo clusters.
Though there is some evidence as to the value of the yield, this may not be a relevant factor having regard to the principles of valuation appropriate to the case.
There is no evidence about the timber value and the fuel value of the trees.
Learned District Judge has awarded a sum of Rs.355.85 for the entire tree growth.
Having regard to the large number of trees and to the fact that some of them were timber trees, we think we should award lumpsum of Rs.7,500 under this head.
Accordingly, compensation for the tree growth is enhanced from Rs.355.85 to Rs.7,500. 11.
Re: Contention(d) This leaves us with the question whether the benefit of Section 23(2) introduced by the UP Land Acquisition (Amendment) Act 1972 (Act No. 28 of 1972) providing for a solatium is available to the appellant on the ground that the proceedings in appeal were pending as on the date when that provision was introduced.
It is to be recalled that by U.P. Land Acquisition (Amendment) Act (Act No. 22 of 1954) Section 23(2) had been deleted from the statute.
The preliminary notification was long subsequent to this deletion.
The question is whether the introduction or re introduction of Section 23(2) in 1972 would enure to the benefit of the appellant on the premise that rules of construction appropriate to such remedial measures would require their benefit to be extended to pending proceedings.
Appellant has also claimed the benefit of the further enhancement of the solatium and the rates of interest under Central Amending Act 68 of 1984.
Shri Mukharjee submitted that these amendments, both by the State Law and the Central Law, were remedial legislations and would apply to pending actions.
Shri Prithviraj, on the contrary, submitted that these changes in the law, brought in by the amended provisions are presumptively prospective except to the extent that they are made expressly or by compelling implication retrospective in the extension of their benefits.
Learned Counsel said that application of these provisions even to pending proceedings envisages a principle of retro active application which must expressly be enabled by the statute or is to be inferred as an inevitable implication.
1042 Shri Mukharjee relied upon certain observations of this court in the case of Bhag Singh & Ors.
vs Union Territory of Chandigarh, (See 1985 Suppl.
2 SCR 949).
There are some observations at 958 of the report which tend to lend support to Shri Mukharjee.
But the matter is pending decision at the hands of a larger bench.
In the circumstances, learned counsel on both sides submitted that the appeal be disposed of on the other points leaving it open to the appellant to agitate Contention (d) after a final pronouncement in Bhag Singh 's case, if in the light of the said judgment, this claim or any part of it survives.
We accept this submission and reserve liberty to the appellant accordingly.
Shri Mukharjee sought to raise another point concerning compensation to be awarded for change of residence under Clause 'fifthly ' in Sec.
23(1); but as this point does not appear to have been raised and urged before the High Court.
We think, we should not permit the appellant to re agitate this question over again in this court.
It is also to be observed that no specific ground is taken in this behalf in this appeal either.
In the result, this appeal is allowed in part and while the compensation determined and awarded for the land is left undisturbed, the compensation awarded for the building and tree growth is enhanced from Rs.57,660 to Rs.2,00,000 and from Rs.355.85 to Rs.7,500 respectively.
Appellant shall be entitled to interest at 6% on the enhanced amount of compensation from the date of taking of possession till realisation.
Liberty is reserved to the appellant to seek such additional relief on Contention (d) depending upon the ultimate decision in Bhag Singh 's case.
The appeal is disposed of accordingly.
The appellant shall be entitled to the costs in this appeal.
The advocate 's fee fixed at Rs.2,500.
N.V.K. Appeal allowed.

summary:
% The suit property known as "Gopal Lal Villa" situated on the outskirts of the city of Varanasi was a sprawling 60 years old building, part of the estate of a Raja, and vested in the appellant.
It was acquired pursuant to preliminary Notification dated 4.7.1959 under the Land Acquisition Act 1894 for the purposes of the Education Department of the Government of Uttar Pradesh.
The building was of about 25,000 square feet plinth area comprising 35 rooms, halls and other appurtenances, and the 23.66 acres of ground appurtenant to the building, had 431 fruit and 13 timber trees and 12 bamboo clumps.
The appellant claimed compensation of Rs.8,00,580 for the land valuing it at Rs.352 per decimal.
Rs.3,50,000 for the building and structures; Rs.41,010 for the tree growth and Rs.5,000 as compensation for change of residence.
The Land Acquisition Officer by his Award dated 4.11.1961 1026 under section 11 of the Land Acquisition Act determined the market value of the land at Rs.3,31,340 valuing it at Rs.140 per decimal; of the building and superstructure at Rs.57,660 and of the tree growth at Rs.355.83.
Being aggrieved with the aforesaid determination of compensation the appellant did not accept the offer contained in the Award, and sought for a reference under section 18 of the Act to the Civil Court.
The District Court enhanced the market value of the land to Rs.4,73,200 i.e. from Rs.140 to Rs.200 per decimal and left the valuation of the building and the tree growth undisturbed.
The High Court affirmed the Award of the District Court and dismissed the appellant 's claim for further enhancement.
In the appeal to this Court, it was contended on behalf of the appellant that the claim of Rs.352 per decimal was not accepted and that the High Court in affirming the valuation of the land at a mere Rs.200 per decimal overlooked certain settled principles of valuation.
It adopted the District Judge 's valuation which was the average of the valuation reflected in Ext.
2 and Ext.
19 while the higher of the two figures indicated by Ext.
2 should have been adopted.
It was further contended that the appellant was entitled to solatium and interest at higher rates in view of the re introduction of section 23(2) in 1972 by the U.P. Land Acquisition (Amendment) Act, 1972 and under the Central Amendment Act 68 of 1984.
On behalf of the respondent it was contended that the changes in law brought about by the State Amendment Act No. 28 of 1972 and the Central Amending Act 68 of 1984 are presumptively prospective except to the extent that they are made expressly or by compelling implication retrospective in the extension of their benefits.
On the question whether: (1) ^ HELD: 1.(i) The determination of market value of a piece of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria.
[1033C D] (ii) The market value of a piece of property for purposes of section 23 of the Land Acquisition Act is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arm 's length.
[1033D] (iii) Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market value.
Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.
[1033E F] (iv) Prices fetched for smaller plots cannot form safe bases valuation of large tracts of land as the two are not comparable properties.
[1034E] Collector of Lakhimpur vs B.C. Dutta, AIR 1971 SC 2015; Mirza Nausherwan Khan & Anr.
vs The Collector (Land Acquisition), Hyderabad, ; ; Padma Uppal etc.
vs State of Punjab & Ors.
, ; and Smt.
Kaushalya Devi Bogra & Ors.v.
The Land Acquisition Officer, Aurangabad & Anr., ; , referred to.
(v) However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building plots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out 1028 could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparabe small sites in the area at or about the time of the notification would be relevant.
[1034G H] (vi) In a case such as the above, necessary deduction for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc.
are to be made.
[1034H; 1035A B] Sahib Singh Kalha & Ors.
vs Amritsar Improvement Trust and Ors., referred to.
(vii) Prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail ' price of land and the latter the 'wholesale ' price.
[1035B] (viii) Subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area.
[1035C] (ix) Where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value.
(a) When there is evidence to the effect that there was no upward surge in the prices in the interregnum.
(b) The burden of establishing this would be squarely on the party relying on such subsequent transaction.
[1035C D,G] State of U.P. vs Major Jitender Kumar, referred to.
In the instant case, the appellant did not endeavour to show that between the date of preliminary notification i.e. 4.7.1959 and the date of Ext.
24 i.e. 18.8.
1960 there was no appreciation in the value of land in the area.
Therefore, Ext.
24 cannot be relied upon as affording evidence of the market value as on 4.7.1959.
[1035G H] (xi) The valuation of land made in the present case does not call for or justify any upward revision at all.
(a) There is no justification to interfere with the determination of the market value of the land approved by the High Court.
[1036C D] 1029 In the instant case Rs.200 per decimal for the large extent of the acquired land works out to 40% of the "retail" price even if Rs.500 is taken as the 'retail ' price.
That apart, in the case of land with potentialities for a more profitable use it is necessary to acknowledge, and make due allowance for, the possibility that the land might not be applied for the prospective use at all or not so applied within a reasonable time.
[1036H; 1037A B] Bombay Improvement vs Mervanji Manekji Mistry, AIR 1926 Bombay 420 referred to.
2.(i) Usually land and building thereon constitute one unit.
Land is one kind of property; land and building together constitute an altogether different kind of property.
The latter must be valued as one unit.
[1037C D] (ii) However, where, the property comprises extensive land and the structures standing do not show that full utilisation potential of the land is realised it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time.
[1037D E] (iii) By the above method, building value is estimated on the basis of the prime cost or replacement cost less depreciation.
The rate of depreciation is, generally, arrived at by dividing the cost of construction (less the salvage valued at the end of the period of utility) by the number of years of utility of the building.
[1037E F] (iv) The factors that prolong the life and utility of the building, such as good maintenance, influence and bring down the rate of depreciation.
[1037F] In the instant case, the estimate of the proper market value of the building has not received the requisite attention both before the High Court and the District Court.
It is no doubt true that the Valuation Report, Ext.
I, was prepared on 20.7.
1960 one year after the date of the preliminary notification.
But the extent of the built area was about 25,000 sq.
There is no evidence to suggest that the rates mentioned and adopted in Ext.
I were not rates valid for a spread out period.
No case was made out that the building had lost its utility and that the only mode of valuation appropriate to the case was one of awarding merely the salvage value.
The building, according to the evidence was quite 1030 strong though about 60 years old at the time.
The appropriate thing to do would have been to set aside the award in so far as the valuation of the building is concerned and remit the matter for a fresh determination of its market value as on 14.7.1959.
However, in the interest of justice it would be proper to make some ready and rough estimate drawing such sustenance as the evidence on record could afford and impart a quietus to this vexed litigation.
Accordingly, the compensation for the buildings and structures is enhanced from Rs.57,660 to Rs.2,00,000.
[1038G H; 1039D G; 1040G] 3.
Where land is valued with reference to its potentiality for building purposes and on the basis of prices fetched by small sites in a hypothetical lay out the tree growth on the land cannot be valued independently on the basis of its horticultural value or with reference to the value of the yield.
This principle, however, does not come in the way of awarding the timber value or the salvage value of the tree growth after providng for the cost of cutting and removing.
[1040G H; 1041A] In the instant case, the evidence shows that there were 471 fruit bearing trees and plants, 13 timber trees and 12 bamboo clusters.
Though there is some evidence as to the value of the yield, there is no evidence about the timber value and fuel value of the trees.
The District Judge has awarded a sum of Rs.355.85 for the entire tree growth.
Having regard to the large number of trees and to the fact that some of them were timber trees, it would be appropriate to award a lump sum of Rs.7,500 under this head.
The compensation for tree growth is accordingly enhanced from Rs.355.85 to Rs.7,500.
[1041A C] 4.
By the U.P. Land Acquisition (Amendment) Act, 1954, Section 23(2) had been deleted from the statute.
It was re introduced by the U.P. Land Acquisition (Amendment) Act 1972.
The preliminary notification for the acquisition was issued subsequent to the deletion.
Whether re introduction of sub section (2) would enure to the benefit of the person whose land is acquired on the ground that proceedings in appeal were pending on the date of introduction of that provision, and availability for further enhancement of the solatium and rates of interest under the Central Amendment Act 68 of 1984 are left open with consent of counsel to be agitated after final decision in Bhag Singh vs U. T. of Chandigarh, by a larger Bench of this Court.
[1041E F; 1042B] 5.
The point concerning compensation to be awarded for change of residence under clause 'fifthly ' in section 23(1) does not appear to have been raised and urged before the High Court.
No specific ground 1031 has also been taken in this behalf in the appeal before this Court.
The appellant should not, therefore, be permitted to re agitate this question over again in this Court.
[1042D]


judgement:
ION: Civil Appeal No. 660 of 1988.
From the Judgment and Order dated 20.8.1987 of the Gujarat High Court in Election Petn.
No. 6 of 1985.
Shanti Bhushan, P.M. Raval, M.V. Goswami and Ambrish Kumar for the Appellant.
Vithalbhai B. Patel and R.P. Kapoor for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question which arises for consideration in this appeal is whether a Letters Patent appeal lies to a Division Bench of the High Court of Gujarat from an interlocutory order passed by a Single Judge of that High Court in the course of the trial of an election petition filed under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') or not.
1047 At the election held on March 5, 1985 to fill a seat in the Legislative Assembly of the State of Gujarat from the Lunavada Legislative Assembly Constituency the appellant and respondent Nos. 1 to 6 were the candidates.
At that election the appellant having secured the largest number of votes was declared as elected to the Legislative Assembly.
Thereupon the 1st respondent filed an election petition in Election Petition No. 6 of 1985 on the file of the High Court of Gujarat under section 81 of the Act questioning the validity of the election of the appellant on various grounds.
The appellant contested the election petition.
On the basis of the pleadings a number of issues were framed.
In the course of the election petition, the first respondent had made inter alia the following allegations: (i) that bogus votes had been cast in favour of the appellant in the names of dead persons; (ii) that votes had been cast in the names of voters who were physically far away from the constituency and had not come for voting on the date of polling; and (iii) that votes had been cast in the names of voters who were out of the country on the day of polling.
In order to establish his case, the Ist respondent applied to the learned Single Judge who was trying the election petition to direct the Returning Officer to produce all the records of election and particularly the used ballot papers and counterfoils of used ballot papers, the unused ballot papers, the marked copies of electoral rolls and the authorisations of the polling agents of different candidates in respect of 13 villages and 14 polling booths mentioned in the application.
The Ist respondent prayed for permission to inspect the ballot papers, the marked copies of voters ' lists and certain other materials referred to above.
The appellant objected to the grant of the prayers made by the Ist respondent.
After taking into consideration the evidence that had been adduced before him and hearing the arguments of the learned counsel for the parties, the learned Single Judge declined to grant the application made by the Ist respondent by his Order dated July 18/21, 1986.
Aggrieved by the order passed by the learned Single Judge the Ist respondent preferred an appeal under clause 15 of the Letters Patent of the High Court of Gujarat in Letters Patent Appeal No. 3 of 1987 which was heard by a Division Bench of the High Court.
Before the 1048 Division Bench the appellant contended that the appeal was not maintainable on the ground that there was no provision in the Act which permitted an appeal to the Division Bench of the High Court against an interlocutory order of a Judge hearing the election petition filed under the Act and that clause 15 of the Letters Patent was not applicable to the case.
The Division Bench after overruling the objection regarding the maintainability of the appeal in view of the decision of the High Court of Gujarat in Dr. Chotalal Jivabhai Patel vs Vadilal Lallubhai Mehta & Ors., 12 Gujarat Law Reporter 850 allowed the appeal to the extent indicated in the course of its judgment.
Aggrieved by the decision of the Division Bench, the appellant has filed this appeal by special leave under Article 136 of the Constitution of India.
The only point urged on behalf of the appellant in the course of this appeal is that the appeal filed under clause 15 of the Letters Patent of the High Court against the interlocutory order passed by the learned Single Judge was not maintainable and, therefore, the judgment of the Division Bench was liable to be set aside.
In order to appreciate the submissions made by the learned counsel for the parties before us, it is necessary to refer to the relevant provisions of the Constitution, the Act and the Letters Patent.
Article 329(b) of the Constitution of India reads thus: "329.
Bar to interfere by courts in electoral matters Notwithstanding anything in this Constitution.
(a). . . . . . . (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." (underlining by us) Article 327 of the Constitution gives power to Parliament to make provisions with respect to elections to Legislatures.
It reads thus: "327.
Power of Parliament to make provision with respect to elections to Legislatures Subject to the provisions of this Constitution, Parliament may from time to time by law 1049 make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
" In exercise of its powers under Article 329(b) read with Article 327 of the Constitution Parliament enacted the Act in the year 1951.
In the Act, provision was made for constituting an authority to decide election disputes as required by clause (b) of Article 329 of the Constitution of India.
The scheme of the Act, as it originally stood, insofar as the presentation of the election petitions and their trial was concerned was as follows: Under section 81 of the Act an election petition calling in question any election had to be presented to the Election Commission by any candiate at such election or any elector in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or the candidates at such election.
The election petition so presented to the Election Commission was liable to be dismissed by the Election Commission itself under section 85 of the Act if it was not presented in accordance with the provisions of section 81 of the Act, if the petition did not conform to the provisions of section 83 of the Act or if the petitioner had not enclosed with the petition a Government treasury receipt showing that a deposit of Rs. 1,000 had been made by him either in a Government treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition.
If the petition was not dismissed under section 85 of the Act, the Election Commission was required to appoint an Election Tribunal for the trial of the petition.
Under section 86 of the Act every election tribunal appointed under this section was to consist of a Chairman who was either or had been a Judge of the High Court or a person selected by the Election Commission from the list maintained by it under clause (a) of sub section (2) of section 86 of the Act and two other members of whom one was a person who had been a District Judge in the State and was in the opinion of the High Court fit to be appointed as a member of the Election Tribunal and the other was an advocate of that High Court who had been in practice for a period of not less than 10 years and who was in the opinion of the High Court fit to be appointed as 1050 such member.
The Election Tribunal had under section 98 of the Act the power to dismiss an election petition, to declare the election of the returned candidate or the returned candidates as void and to declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate was duly elected or to declare the election to be wholly void.
It had also the power to pass certain other orders mentioned in section 99 of the Act.
The powers of the Tribunal, the procedure to be followed by it and the other details regarding the trial of an election petition had been set out in Chapter III of Part VI of the Act.
Section 105 of the Act, as it then stood, declared that every order of the Tribunal made under the Act was final and conclusive.
No appeal was provided against the order of the Tribunal interlocutory or final.
Any person aggrieved by the decision of the Tribunal could only move either the High Court having jurisdiction over the matter under Article 226 or the Supreme Court of India under Article 136 of the Constitution.
In N.P. Ponnuswami vs Returning Officer, Namakkal Constituency and others; , a Constitution Bench of this Court observed that the right to vote or to stand as a candidate for an election was not a civil right but was a creature of statute or special law and must be subject to the limitations imposed by it.
It further observed that it was the sole right of the Legislature to examine and determine all materials retained to the election of its own members and if the Legislature took it out of its own hands and vested in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which created it.
After considering the relevant provisions of the Act, the Court observed at page 230 thus: "Obviously, the Act is a self contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder.
" It proceeded further to observe at Page 231 thus: "It is well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." 1051 It is thus seen that when the Act was originally enacted the authority constituted by law under Article 329(b) of the Constitution of India to try an election petition was a single tier authority, i.e., the Election Tribunal constituted under section 86 of the Act against whose orders, interlocutory or final, there was no appeal provided by the Act.
Apart from the remedies available under the constitutional provisions against the orders of the Election Tribunal no other court in India had jurisdiction to interfere with the orders of the Election Tribunal either in appeal or otherwise.
In 1957 Parliament perhaps felt that the scheme of the provisions relating to settlement of disputes regarding elections was not quite satisfactory.
Therefore by Act 27 of 1956 the Act was amended by introducing certain changes with regard to the constitution of the Tribunal and by providing an appeal against the final orders of the Tribunal under section 98 or section 99 of the Act.
Instead of an Election Tribunal consisting of three persons as it was originally provided, under section 86 of the Act which was substituted in the place of the original section 86 of the Act, it was provided that if an election petition was not dismissed under section 85 of the Act by the Election Commission, the Election Commission shall constitute a Tribunal for trying the election petition by appointing a District Judge from a list of persons who were District Judges in the State and were in the opinion of the High Court fit to be appointed as members of the Election Tribunal.
Under this provision the Tribunal thus consisted of a single member.
A new chapter entitled 'Chapter IV A ' consisting of sections 116 A and 116 D was introduced into Part VI of the Act providing for an appeal from any order of the Election Tribunal made under section 98 or section 99 of the Act to the High Court of the State in which the Tribunal was situated.
The decision of the High Court on appeal under the said Chapter and subject only to such decision the order of the Tribunal under section 98 or section 99 of the Act was final and conclusive.
Thus by the above amendment the authority to decide election disputes constituted under Article 329(b) of the Constitution of India became a two tier authority, the Election Tribunal being the original authority and the High Court being the appellate authority.
The decision of the High Court was no doubt subject to appeal to this Court under the provisions of the Constitution.
Even here there was no provision for an appeal against the interlocutory orders passed by the Election Tribunal but they were only subject to the jurisdiction of the High Court under Article 226 of the Constitution and this Court under Article 136 of the Constitution.
1052 The above situation continued till the Act was further amended by the Representation of the People (Amendment) Act, 1966.
By this amendment the power to try an Election Petition was entrusted to the High Court.
The new section 80 A which was introduced into the Act reads as follows: "80 A. High Court to try election petitions: (1) The Court having jurisdiction to try an election petition shall be the High Court.
(2)Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose.
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.
" A new section was substituted in the place of the former section 86 of the Act by the amendment made in the year.
The relevant part of new section 86 reads thus: "86.
Trial of election petitions (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation An order of the High Court dismissing an election petition under this sub section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub section (2) of section 80A. 1053 (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial".
By the above said amendment the former section 116 A of the Act was substituted by new section 116 A providing for an appeal against the order made by the High Court under section 98 or section 99 of the Act to this Court.
The new section 116 A reads thus: "116 A. Appeals to Supreme Court (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under section 98 or section 99.
(2) Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under section 98 or section 99.
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.
" Even on this occasion the Act did not provide for any appeal against any interlocutory order passed by Judge trying an election petition.
After the above amendment the authority referred to in Article 329(b) of the Constitution to decide an election petition under the Act is again two tier authority the High Court Judge trying an election petition being the original authority and the Supreme Court the appellate authority.
The effect of clause (b) of Article 329 of the Constitution as already referred to above has been explained by the Constitution Bench of this Court in N.P. Ponnuswami 's case (supra).
No Court exercising power under any ordinary law other than the judge of a High Court who has been assigned the work of trying an election petition under sub section (2) of section 80A of the Act and the Supreme Court which is empowered to hear an appeal against any order passed by the Judge of the High Court under section 98 or section 99 of the Act can therefore decide any question arising out of an election petition.
The power of the Supreme Court under the provisions of the Constitution which is the fundamental law of the land and not an ordinary law is however unaffected by any of the provisions of 1054 the Act.
It means that when the election petition is pending in the High Court only the Judge who is asked to try an election petition can deal with questions arising in it and no other Judge or Judges of the High Court can deal with them.
When the order passed by the Judge of the High Court in an election petition is an order passed under section 98 or section 99 of the Act it is subject to the appellate jurisdiction of the Supreme Court under section 116 A of the Act as Article 136 of the Constitution naturally stands excluded in view of the express provisions contained in section 116 A of the Act.
The remedy available under Article 136 of the Constitution may, however, be resorted to by any party who is aggrieved by any order passed by the Judge trying an election petition which does not fall under section 98 or section 99 of the Act.
It follows that the Division Bench of the High Court which is entitled to hear an appeal against any order of a Single Judge under clause 15 of the Letters Patent of the High Court which is an ordinary law cannot hear an appeal against any interlocutory order passed in the course of the trial of an election petition by the Judge trying an election petition since the Division Bench is not specified in the Act as an appellate authority which can deal with questions arising out of an election petition filed under the Act.
Clause 15 of the Letters Patent of the High Court of Gujarat (omitting the unnecessary portions) reads as follows: "15.
Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction.
And we do further ordain that an appeal shall lie to the said High court . . from the judgment (not being a judgment passed in the exercise of appellate jurisdiction . . ) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act,. . The relevant part of clause 15 of the Letters Patent which is referred to above provides for an appeal against a judgment passed by a Single Judge of a High Court to the same High Court and the scope of the said appellate power has been explained by this Court in Shah Babulal Khimji vs Jayaben D. Kania & Anr., ; An appeal no doubt lies under that clause from an order of a Single Judge of the High Court exercising original jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an interlocutory stage provided it satisfies the conditions set out in the above decision but the said provision cannot 1055 be extended to an election petition filed under the Act.
Conferment of the power to try an election petition filed under the Act does not amount to enlargement of the existing jurisdiction of the High Court.
The jurisdiction exercisable by the Single Judge under the Act is a special jurisdiction conferred on the High Court by virtue of Article 329(b) of the Constitution.
Having regard to the history of the legislation and the limited nature of the appeal expressly provided in section 116 A of the Act it should be held that any other right of appeal (excluding that under the Constitution) is taken away by necessary implication.
We, therefore, find it difficult to subscribe to the view that when once the jurisdiction to try an election petition is conferred on the High Court all other powers incidental to the ordinary original jurisdiction exercised by a Single Judge of a High Court would become applicable to an election petition filed under the Act.
It is no doubt true that in Dr. Chotalal Jivabhai Patel 's case (supra) the Division Bench of the High Court of Gujarat applied the rule laid down in National Telephone Company Ltd. vs Post Master General, [913] A.C. 546 namely "When a question is stated to be referred to an established Court without more, it . . imports 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" to an election petition filed under the Act which the High Court could try in exercise of the special jurisdiction conferred on it by the Act and held that except an order under section 98 or section 99 of the Act which was made expressly appealable under section 116A of the Act to this Court all other orders passed by the Judge trying an election petition would be appealable to the High Court under clause 15 of the Letters Patent.
The principle applied by the High Court is not an unqualified one.
That rule itself suggests that even where a court is asked to hear a case, it is quite possible that the nature of the jurisdiction may be such that all the incidents of procedure or any general right of appeal from its decision may not be attracted.
Perhaps the Division Bench would not have reached the said conclusion if it had considered the effect of Article 329(b) of the Constitution which authorised the creation of an authority for trying disputes arising out of elections to the Houses of Parliament and to the Houses of State Legislatures and the history and the scheme of the Act and the limited right of appeal provided in section 116 A of the Act.
We do not find any discussion about the effect of the constitutional provision in Article 329(b) in the course of the said decision.
There was also no adequate appreciation of the need to construe the Act as a complete code regarding all matters relating to settlement of election disputes.
It is significant that in sub section (7) of section 86 of the Act it is stated that every election petition shall be 1056 tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
If Parliament intended that the Division Bench of the High Court should exercise its appellate jurisdiction under clause 15 of the Letters Patent of the High Court probably it would not have enacted sub section (7) of section 86 of the Act having regard to the well known tendency of one or the other party to an election petition preferring appeals against interlocutory orders to the Division Bench.
The presence of such a remedy is enough to defeat the object of enacting sub section (7) of section 86.
If such appeals against interlocutory orders to the High Court are permitted perhaps no election dispute will be finally settled until the next election becomes due.
The intention of Parliament is that at the level of the High Court only the Judge who is asked by the learned Chief Justice to try an election petition should be the sole Judge to decide any question arising out of any such election petition and that at the appellate stage the Supreme Court alone should deal with any matter arising out of the election petition.
We are of the view that as regards the jurisdiction to try an election petition and the right of appeal of the parties to an election petition, the provisions of the Act (apart from the provisions in the Constitution) constitute a complete code and no other Judge or Judges other than the Single Judge of the High Court who is asked to try an election petition and the Supreme Court exercising appellate powers under section 116A of the Act in respect of orders passed under section 98 or section 99 of the Act or under Article 136 of the Constitution in respect of other orders can have any jurisdiction to deal with any matter arising out of an election petition filed under the Act.
We do not therefore agree with the view expressed on this question by the High Court of Gujarat in Dr. Chotalal Jivabhai Patel 's case (supra).
We therefore overrule the said decision.
We also overrule the decision of the Madras High Court in Kadiravan alias Shamsudeen vs B. Thirumalaikumar, I.L.R. and the decision of the Madhya Pradesh High Court in Laxmi Narayan Nayak vs Ramratan Chaturvedi and Ors.
, A.I.R. 1986 Madhya Pradesh 165 which have taken the same view as in Dr. Chotalal Jivabhai Patel 's case (supra).
We are, however, in agreement with the view expressed by the High Court of Allahabad in Siaram vs Nathuram & Ors., [1968] All.
L.J. 576 and by the High Court of Rajasthan in Ramdhan vs Shanwarlal, A.I.R. which have held that by necessary implication an appeal to the High Court from an interlocutory order passed by the Single Judge of the High Court in the course of a trial of an election petition filed under the Act is excluded.
The reasons given in the latter case by the Full 1057 Bench of the Rajasthan High Court are indeed quite substantial.
The Division Bench of the High Court of Gujarat had, therefore, no jurisdiction to hear the appeal filed by the Ist respondent against the interlocutory order passed by the learned Single Judge who was trying the election petition.
We, therefore, set aside the judgment of the Division Bench of the High Court and dismiss the Letters Patent appeal filed before the High Court.
We however express no opinion on the merits of the case.
The parties are at liberty to resort to any other remedy open to them in law.
The appeal is accordingly allowed.
No costs.
S.L. Appeal allowed.

dataset_name: IN-Abs

summary:
% The question which arose for determination in this case was whether a Letters Patent Appeal would lie to a Division Bench of the High Court of Gujarat from an interlocutory order of a Single Judge of that High Court in the course of the trial of an election petition filed under the Representation of the People Act, 1951.
The appellant and respondents Nos.
1 to 6 were candidates at an election held to fill a seat in the Legislative Assembly of the Gujarat State.
The appellant was declared elected.
Thereupon, the 1st respondent filed an election petition in the High Court, challenging the validity of the election of the appellant on a number of allegations, and in order to establish his case, he filed an application before the Single Judge who was trying the election petition, to direct the Returning Officer to produce all the records of the election, mentioned in the application, and prayed for permission to inspect the same.
The appellant opposed the prayers made by the 1st respondent.
The Single Judge declined to grant the application made by the Ist respondent.
Against the order of the Single Judge, the Ist respondent preferred an appeal under clause 15 of the Letters Patent of the Gujarat High Court.
The Division Bench of the High Court allowed the appeal to the extent indicated in its judgment, overruling the contention of the appellant that the appeal was not maintainable as there was no provision in the Act, permitting an appeal to the Division Bench of the High Court against an interlocutory order of a Single Judge hearing an election petition filed under the Act.
Aggrieved by the decision of the Division Bench, the appellant moved this Court for relief by special leave.
Allowing the appeal, setting aside the judgment of the Division 1044 Bench of the High Court and dismissing the Letters Patent Appeal while expressing no opinion on the merits of the case, the Court, ^ HELD: The only point urged in this appeal by the appellant was that the appeal filed under clause 15 of the Letters Patent of the High Court against the interlocutory order passed by the Single Judge was not maintainable and, therefore, the judgment of the Division Bench was liable to be set aside.
[1048C D] Under the provisions of the Act as amended and the provisions of the Constitution of India, no Court exercising power under any ordinary law other than the Judge of a High Court who had been assigned the work of trying an election petition under sub section (2) of section 80 A of the Act and the Supreme Court which was empowered to hear an appeal against any order passed by the judge of the High Court under section 98 or section 99 of the Act, could decide any question arising out of an election petition.
The power of the Supreme Court under the provisions of the Constitution was, however, unaffected by any of the provisions of the Act.
It meant that when an election petition was pending in the High Court, only the judge who was asked to try the election petition could deal with the questions arising in it and no other judge or judges of the High Court could deal with them.
When an order was passed under section 98 or section 99 of the Act by a judge of the High Court in an election petition, it was subject to the appellate jurisdiction of the Supreme Court under section 116 A of the Act, Article 136 of the Constitution being excluded in view of the express provisions of section 116 A of the Act, and being resorted to by any party aggrieved by any order passed by the judge trying an election petition not falling under section 98 or section 99 of the Act.
It followed that the Division Bench of the High Court, which was entitled to hear an appeal against any order of a Single Judge under clause 15 of the Letters Patent of the High Court, which was an ordinary law, could not hear an appeal against any interlocutory order passed in the course of the trial of an election petition by the Judge trying the election petition, since the Division Bench was not specified in the Act as an appellate authority which could deal with questions arising out of an election petition filed under the Act.
[1053G H; 1054A D] Under clause 15 of the Letters Patent, an appeal no doubt lay from an order of a Single Judge of the High Court exercising Original Jurisdiction to the High Court itself irrespective of the fact that the judgment was preliminary or final or that it was one passed at an interlocutory stage, provided it satisfied certain conditions, but the said 1045 provision could not be extended to an election petition filed under the Act.
Conferment of the power to try an election petition under the Act did not amount to enlargement of the existing jurisdiction of the High Court.
The jurisdiction exercisable by the Single Judge under the Act was a special jurisdiction conferred on the High Court by virtue of Article 329(b) of the Constitution.
In view of the limited nature of the appeal expressly provided in section 116 A of the Act, it should be held that any other right of appeal (excluding that under the Constitution) was taken away by necessary implication.
Therefore, it was difficult to subscribe to the view that when once the jurisdiction to try an election petition was conferred on the High Court, all other powers incidental to the ordinary original jurisdiction exercised by a single Judge of a High Court would become applicable to an election petition under the Act.
If the Parliament had intended that the Division Bench of the High Court should exercise its appellate jurisdiction under clause 15 of the Letters Patent of the High Court, probably, it would not have enacted sub section (7) of section 86 of the Act, having regard to the well known tendency of one or the other party to an election petition preferring appeals against the interlocutory orders to the Division Bench.
If such appeals against the interlocutory orders to the High Court, were permitted, perhaps, no election dispute would be finally settled till the next election became due.
As regards the jurisdiction to try an election petition and the right of appeal of the parties to an election petition, the provisions of the Act (apart from the provisions in the Constitution) constituted a complete code and no Judge or Judges other than the Single Judge of the High Court, who was asked to try an election petition, and the Supreme Court, exercising the appellate powers under section 116 A of the Act in respect of orders passed under section 98 or section 99 of the Act or under Article 136 of the Constitution in respect of other orders, could have any jurisdiction to deal with any matter arising out of an election petition filed under the Act.
The Court disagreed with the view expressed on this question by the Gujarat High Court in Dr. Chotalal Jivabhai Patel vs Vadilal Lallubhai Mehta & Ors., (12 Gujarat Law Reporter 850), and overruled that decision of the High Court.
The Court also overruled the decision of the Madras High Court in Kadiravan alias Shamsudeen vs B. Thirumalaikumar, ILR (1970) 2 Mad.
183 and the decision of the Madhya Pradesh High Court in Laxmi Narayan Nayak vs Ramratan Chaturvedi & Ors, AIR 1986 Madhya Pradesh 165 which had taken the same view as in Dr. Chotalal Jivabhai Patel 's Case (supra).
The Court agreed with the view expressed by the Allahabad High Court in Siaram vs Nathuram & Ors., [1968] ALL.
L.J. 576 and by the Rajasthan High Court in Ramdhar vs Shanwar Lal, AIR which held that by necessary 1046 implication an appeal to the High Court from an interlocutory order of the Single Judge of the High Court in the course of trial of an election petition filed under the Act, was excluded.
[1054G H; 1055A H; 1056A H] The Division Bench of the High Court of Gujarat had no jurisdiction to hear the appeal filed by the Ist respondent against the interlocutory order passed by the Single Judge who was trying the election petition.
Judgment of the Division Bench of the High Court set aside, Letters Patent Appeal dismissed.
[1057B] Dr. Chotalal Jivabhai Patel vs Vadilal Lallubhai Mehta Shamsudeen vs B. Thirumalai Kumar, ILR ; and Laxmi Narayan Nayak vs Ramratan Chaturvedi and Ors., A.I.R. 1986 Madhya Pradesh 165, overruled.
Siaram vs Nathuram and Ors., [1968] All.
L.J. 576 and Ramdhan vs Bhanwarlal, A.I.R. approved.
N.P. Ponnuswami vs Returning Officer, Namekkal Constitutency and others; , ; Shah Babulal Khimji vs Jayaban D. Kania & Anr., ; and National Telephone Company Ltd. vs Post Master General, [1913] A.C.546, referred to.