Uttarakhand High Court
Power Grid Corporation Of India Ltd vs Gurbachan Singh And Others on 13 September, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
First Appeal No. 113 of 2013
Power Grid Corporation of India Ltd. .....Appellant
Versus
Gurbachan Singh & others ....Respondents
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Kartikey Hari Gupta,
Advocate for the appellant.
Mr. Sunil Khera, Deputy Advocate General with Ms. Anjali Bhargava, Brief
Holder for the State/respondent Nos. 2&3.
Mr.Gurbachan Singh, respondent No.1 is present in person.
Hon'ble Lok Pal Singh, J.
This first appeal has been filed by the appellant against the judgment and decree/award dated 16.07.2013 passed by 2nd Additional District Judge (A.D.J.), Rudrapur, Udham Singh Nagar in Land Acquisition Reference case No. 11 of 2011, Gurbachan Singh vs. Power Grid Corporation of India Ltd. & Others, whereby the reference court has awarded interest on the amount of compensation under Section 28 of the Act.
2. Brief facts of the case are that the land of the respondent No. 1 was acquired by the appellant herein. Against an award passed by the Special Land Acquisition Officer a reference under Section 18 was made by the reference court. While, increasing the amount of compensation the reference court also awarded interest on it. Feeling aggrieved the appellant has preferred the present appeal. The appeal has been valued for an amount of Rs. 1,99,85,100/- a court fees of Rs. 10/- has been paid.
2While filing the appeal,- stamp reporter has mentioned that this memo of first appeal, stamp of Rs. 10/- is paid, appeal is within time and mark stamp is sufficient. An issue of insufficiency of court fee was not raised by the Stamp Reporter, rather the Stamp Reporter has found that the court fee of Rs. 10/- paid by the appellant is sufficient.
3. Civil miscellaneous application No. 286 of 2016 has been filed by the respondent No.1, that the appellant has not paid the proper court fee, therefore, the appellant be directed to pay the ad valorem court fee on the valuation of appeal i.e. Rs. 1,99,85,100/-.
4. After hearing learned counsel for the parties, this Court vide order dated 27.07.2017 directed the Registry to submit a detail report, "whether court fee paid by appellant is sufficient or not".
5. Pursuant to the order dated 27.07.2017, Registrar Judicial of this Court has submitted its report dated 02.08.2017, stating therein that the valuation of the appeal has been made for an amount of Rs. 1,99,85,100/- , court fee of Rs. 10/- has been paid. The same has been reported by the Stamp Reporter sufficient. It is also mentioned in the report that relief claimed in the appeal is to set aside interest awarded by reference court. This might be the reason of ascertaining the valuation of appeal possibly on the interest part only as furnished by the learned counsel for the appellant in this appeal.
6. The judgment of Bombay High Court in AIR 1986 Bombay 1 Union of India vs. Smt. 3 Maria Olivia Carvalho and others has been placed reliance in report, wherein it has been held that no court fee payable on account of increased compensation, solatium and interest, it being amount of statutory compensation.
7. Another judgment of AIR 1979 Punjab & Haryana 271 Sohan Lal and other vs State of Haryana has been relied upon that in view of the Section 8 of Court Fees Act (1870),interest awarded on compensation and solatium ,court fee is Not payable.
8. It is further mentioned in the report that in view of the Section 5 of the Court Fees Act as well as chapter XI Rule 4 of the High Court Rules, that a controversy in regard to the payment of court fee shall be decided by the Taxing Officer.
9. The appellant has filed its objection against the aforesaid application and contended that in view of the Section 8 of the Court Fees Act, the court fee is not payable, as the appellant has challenged of the judgment and award passed by the reference Court. Section 8 of the Court Fees Act is reproduced hereunder:
"8. Fee on memorandum of appeal against order relating to compensation.- The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purposes or against an award made by a tribunal constituted under the United Provinces Town Improvement Act or any other similar Statute shall be computed according to the difference between the amount awarded and the amount claimed by the appellant."4
10. The appellant Power Grid Corporation of India Ltd. has valued the appeal for an amount of Rs. 1,99,85,100/- and court fee of Rs. 10/- has been paid. An amount of Rs. 1,99,85,100/- is being challenged by the appellant, contending that being the interest it is not part of the award/compensation.
11. An appeal would lie against the judgment and award passed by the reference Court under Section 54 of Land Acquisition Act. Section 54 of Land Acquisition Act is reproduced hereunder:
"[54. Appeals in proceedings before Court. - Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to Substitute by A.O. 1950 (the Supreme Court) subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908 (5 of 1908), and in Order XLV thereof.]"
12. Thus, the learned counsel for the appellant would contend that no court fee is payable as the amount of interest awarded against the appellant has been challenged in this appeal. However, on the query of the Court, the learned counsel for the appellant would submit that no court fee is payable in the present appeal. Learned counsel for the appellant is unable to convince this Court that no court fee is payable on the interest awarded on the compensation. If the court fee is not payable on interest part, according to his submission, why he has paid the court fee of Rs. 10/-.
513. Learned counsel for the appellant initially submitted that there was a notification by the State Government, that the State Government and its corporations are exempted to pay court fee, but subsequently he fairly conceded, that despite his sincere efforts he could not find out the said notification of paying the court fee of Rs.10/- or state and its corporations are exempted from payment of court fee. Learned counsel for the appellant has placed reliance upon the judgment of Hon'ble Bombay High Court in the case ,Union of India vs. Smt. Maira Olivia Carvalho & Others, AIR 1986 (1) and submitted that court fee is not payable on interest part. Relevant paragraph is reproduced hereunder:
"12. Mr. Nadkarni finally contended that in any event, the respondents have to pay Court fee on the additional compensation as well as on the increased solatium and interest. We find no merit at all in this contention of the learned counsel. In fact, as held by the Patna High Court in 'Smt. Siawati Kuer v. State of Bihar' AIR 1972 Pat 294, the statutory compensation allowed under S. 23(2) does not form part of the compensation awarded and when an appeal is filed under S. 54 against the award, no court-fee is payable on the amount of statutory compensation. The same view was taken by the Andhra Pradesh High Court in Kesireddi Appala Swamy v. Special Tahisildar, Land Acquisition Officer, Central Rly. Vijayawada' AIR 1970 Andh Pra 139 (FB). Undoubtedly, the additional compensation as well as increased solation and interest are being awarded to the respondents on account of a statutory provision of law. This being so, the question of paying any court-fee on these amounts does not arise."
14. The Hon'ble Bombay High Court relying upon the provisions of Section 23 (2) of the Land 6 Acquisition Act held that no court fee is payable on the amount of statutory compensation, meaning thereby the interest awarded to the land owner on the statutory amount it became the part of compensation and no court fee is payable by the land owner either in appeal or in execution on solatium and interest awarded in addition to the compensation.
15. The appellant has filed its objection to the aforesaid application and contended that the sufficient court fee of Rs. 10/- has been paid. It is further contended by the appellant that the appellant has paid court fee to the best of its understating and as per the provisions of Court Fee Act and nothing else has been stated in the objection.
16. Heard Mr. A.S. Rawat, Senior Advocate assisted by Mr. Kartikey Hari Gupta, Advocate for the appellant, Mr. Sunil Khera, Deputy Advocate General with Ms. Anjali Bhargava, Brief Holder for the State/respondent Nos. 2&3 & Mr. Gurbachan Singh, in person.
17. Also perused the material available on record. Firstly, I would deal to the report of Assistant Registrar the report of Assistant Registrar of this Court is based on the following judgments:
1. AIR 1979 Punjab & Haryana 271 Sohan Lal and other vs State of Haryana, it was a case before the Hon'ble High Court that the appeal of the land owner was allowed by the High Court alongwith 15% solatium and 6% interest on the strength of the judgment passed by the High Court in appeal. An execution application was filed by the land owner to 7 recover the compensation alongwith 15% solatium and 6% interest. The executing court directed the land owner/decree holder to pay the court fee on the amount of solatium and interest as awarded by the High Court. Feeling aggrieved revision was preferred by the land owner/decree holder before the High Court of Punjab and Haryana High Court directed that since the amount of solatium and interest as awarded by the High Court is part of the compensation, therefore, no court fee is leviable and allowed the revision.
2. In AIR 1986 Bombay 1 Union of India vs. Smt. Maria Olivia Carvalho and others, the High Court of Bombay placing reliance on the judgments of Patna High Court reported AIR 1972 (294) and Andhra High Court in AIR 1970 (139) has held that ,that when an appeal is filed under section 54, against the award no court-fee is payable on the amount of statutory compensation .The facts of case in hand are entirely different, thus the ratio of the judgments (supra) is not applicable in the present case.
18. The compensation has been defined under Section11 (1) sub-Section 2 of the Land Acquisition Act. , 1894, which is reproduced hereunder:
11. Enquiry and award by Collector. - [(1)] On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objection (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land [at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-8
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land;
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, or whom, or of whose claims, he has information, whether or not they have respectively appeared before him[;and] 3[(iv) the cost which, in his opinion, should be allowed to any person, who is found to be entitled to compensation [***] as having been actually and reasonably incurred by such person in preparing his claim and putting his case before the collector;
the collector may disallow, wholly or in part, costs incurred by any person, if he considers that the claim made by such person for compensation is extravagant "] [Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.] [(2) Notwithstanding anything contained in sub- section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act.]
19. In an appeal under Section 54 of the Land Acquisition Act the mode of payment of court fee has 9 been defined, under Section 8 of the Court Fees Act, 1870. The appeal has not been filed to the difference between the amount awarded and the amount claimed by the appellant. Thus, the appellant, who has challenged the award passed by the reference court is bound to pay the ad valorem court fee on the amount challenged in appeal.
20. The controversy involved in the present appeal is that the appellant is not challenging the impugned award on the aforesaid controversy, rather the appellant who has acquired the land of respondent is challenging the interest awarded on the compensation to the land owner, which becomes part of the compensation. Since the appellant has challenged the decree in regard to the interest awarded on compensation, therefore, the appellant is liable to pay ad valorem court fee on the amount, put to challenge in appeal.
21. Section 28 of the Land Acquisition Act, which is reproduced hereunder:
"28. Collector may be directed to pay interest on excess compensation. - If the sum, which the Collector did award as compensation, the award of the Court may direct that the collector shall pay interest on such excess at the rate of [nine per centum] per annum from the date on which he took possession of the land to the date of payment of such excess into Court:
[Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date or expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.] 10
22. From the perusal of Section 28 it would reveal that the interest awarded by the collector or the reference court is in addition to the compensation awarded to the land owner. Therefore, the amount of solatium and interest on compensation it becomes the part of the compensation. In view of Section 28 of the Act it is not an interest awarded by the reference court under Section 34 of the Act, which is reproduced hereunder:
"34. Payment of interest - When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited:
[Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.]
23. The Hon'ble Apex Court in the case of Indore Development Authority v. Tarak Singh and Others in Civil Appeal Nos. 5645-46 of 1995 decided on 2nd May, 1995. The relevant paragraphs No. 6 & 7 are reproduced hereunder:
"6. The case on hand stands on a higher footings than the one dealt with in Ghanshyamdas's case (AIR 1987 SC 180/1987 LACC 564 SC). Here, the Subordinate Judge, who deals with the reference, is a civil court under the Central Act to determine compensation. By operation of S.26(2), his award is a decree within the meaning of S.2(2), of CPC. It is a formal 11 expression of an adjudication on the compensation awardable or measurement of the land acquired under the Central Act. It is a final adjudication also, unless it can be avoided in any other forum known to law; and it could be avoided only by filing appeal as prescribed in S.54 of the Central Act.
7. In those context, it is relevant to note S.8 of the M.P. Court Fees Act which reads thus:
"Fee on Memo of appeal against order relating to compensation:- The amount of fee payable under this Act on a Memo of Appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purpose shall be computed according to the difference between the amount awarded and the amount claimed by the appellant."
It is true that the appellant is not the claimant. But when the appellant seeks to avoid the decree, which is made by the reference Court, it must be construed that the appellant is seeking to avoid the amount of higher compensation determined by the reference Court, as claimed by the land owners. Therefore, the appellant is required to pay the Court fee on the memorandum of appeal to the extent on which the appellant seeks to avoid the higher compensation awarded by the reference Court under the Central Act. When its legality is challenged by filing the appeal under S.54, the difference of the amount for which appeal is filed, ad valorem court fee under S.8 is required to be paid. Article 11 of Schedule II has no application, since it is expressly covered by S.8 of the M.P. Court fees Act."
24. The Full Bench of Madras High Court in the case of J. Pattammal v. The collector of Madras and another, AIR 1972 Madras 158 (V 58 C51), while considering the payment of court fee has answered in paragraph Nos. 5 & 6 and held that the court fee was not payable on the interest awarded under Section 29 on the compensation award, as it is not part of the compensation and answered that in 12 paragraph no. 13 and held that the interest payable under Section 28 of the Act, the court fee would be payable.
25. The similar controversy was before Hon'ble Apex Court in the case of Indore Development Authority v. Tarak Singh and Others in Civil Appeal Nos. 5645-46 of 1995, the Apex Court considering the provision of Section 8 of Madhya Pradesh Court Fees Act are similar to the Court Fees Act is applicable in the State of Uttarakhand. The Hon'ble Apex Court in paragraph has held that the final adjudication has been made by the reference court. Therefore, it becomes decree in view of the Section 2 (2) of CPC and in case the appellant wish to avoid the decree by challenging in appeal, the appellant has to pay the ad valorem court fee.
26. An interest awarded on compensation amount under Section 28 is part of the compensation as it is not an interest under Section 34 of the Act. I am of the considered view that the court fee paid by the appellant of Rs. 10/- is insufficient and the appellant, who has filed the first appeal under Section 54 of the Act is avoiding the decree is liable to pay ad valorem court fee on the amount of award (interest), assailed in appeal. In view of the above, civil miscellaneous application is allowed. Appellant is directed to pay ad valorem court fee on an amount of Rs. 1,99,85,100/- within a week from today. List this matter on 20.09.2017 for further order.
1327. Copy of the order be supplied to the respective parties on payment of usual charges today itself.
(Lok Pal Singh, J.) 13.09.2017 Balwant