STATE OF KERALA VS. KURIYAN VARGHESE AND ORS.

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FACTS
The appeal has been filed under Section 5(11) of the High Court Act by the State aggrieved
by the judgment dismissing an appeal by it as filed under Section 54 of the Land Acquisition
Act read with Order XLI, Rule 1 of the Code of Civil Procedure. When the appeal came up
for admission before a Division Bench, the learned Judges entertained a doubt as to whether
an appeal under Section 5(11) of the High Court Act would lie against the decree passed by a
Single Judge to a Division Bench and referred the appeals to a Full Bench. In support of the
appeal, the Appellant relied on a decision of the Full Bench of this Court which held that such
an appeal is maintainable.
ISSUES:
Whether Section 54 of the Land Acquisition Act is an enabling provision?
REASONING:
The right of appeal becomes a substantive right. Therefore when Section 54
conferred the right of appeal must be understood only on the terms of the provision
conferring the right of appeal. It is difficult to accept the position that Section 54 of
the Land Acquisition Act is merely an enabling section and was enacted in order to
confer a right of appeal to His Majesty in Council, now to the Supreme Court. It
must be noted that Section 54 of the Act was retained and amended by Act 19 of
1921, inspite of the amendment brought to Section 26 by adding Sub-section (2) to
it and creating a fiction that an award on a reference to the Court shall be deemed to
be a decree as defined in the Code of Civil Procedure inviting the consequences that
may arise therefrom.
HELD:
The court came to that conclusion in its view that Section 54 was merely an enabling section
and was enacted in order to confer a right of appeal to His Majesty in Council which right
was not earlier available. Section 54 of the Act is the section that confers the right of appeal
and it is not merely an enabling provision.

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MANU/KE/0805/2001