Jharkhand High Court
Nathuni Mistry vs The State Of Bihar (Now Jharkhand) And ... on 24 January, 2007
Equivalent citations: 2007(2)BLJR871, [2007(2)JCR99(JHR)], 2007 (2) AIR JHAR R 101, 2007 A I H C 1969, (2007) 1 JLJR 564, (2007) 2 LACC 113, (2007) 2 JCR 99 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
Page 0871
1. This appeal has been filed by the appellant under Section 54 of the Land Acquisition Act, 1894 (shortly 'the Act') challenging the judgment and award passed by Page 0872 Subordinate Judge-II, Daltonganj, Palamau as Land Acquisition Judge in Land Acquisition Case No. 10/96 whereby he has dismissed the Reference case under Section 18 of the Act and held that the compensation awarded by the Land Acquisition Officer is just and reasonable.
2. It appears that the Reference Case before the Land Acquisition Judge was valued by the appellant at Rs. 26 lacs whereas the instant appeal has been valued at Rs. 25,78,909=95 paise. The office calculated the court fee amount on the basis of the valuation of the appeal put by the appellant. The matter was then placed before the Registrar General before whom the appellant submitted that court fee amount should not be assessed in terms of Article 1 of Schedule II of the Court Fees Act, rather, it should be governed by Article 9 of Schedule II as amended by Bihar Amendment Act. The Registrar General, disagreeing with the submission of the appellant, directed for payment of ad valorem court fee on the amount which is the value of the appeal. When the court fee amount was not paid, the appeal has been placed before this Bench for hearing in the matter of payment of court fee.
3. Learned Counsel appearing on behalf of the appellant submitted that the award passed under the Act is neither a decree nor has the force of decree and, therefore, ad valorem court fee is not payable. Learned Counsel further submitted that in the matter of payment of court fee, it shall be governed by Article 9 of Schedule II of the Court Fees Act as amended by Bihar Amendment Act, 1995.
4. The State of Bihar by various ordinances and Act made necessary amendment in Schedules 1 and II of the Court Fees Act. Recently Schedules I and II of the Act have been substituted by the Court Fees (Bihar Amendment) Act, 1995 for its application to the State of Bihar including the State of Jharkhand. After amendment Act, 1995, Article 9 of Schedule II clearly provides court-fee payable for memorandum of appeal or cross-objection against a decree or order which do not have the force of a decree. The Court-fee payable in such appeal or cross-objection would be in accordance with the rules prescribed in the third column of this Article. The term "decree" has not been defined in the Court Fees Act, but Sub-section (2) of Section 2 of the Code of Civil Procedure defines the term "decree".
5. Now the question that falls for consideration is as to whether an order passed by the Land Acquisition Judge on the reference under Section 18 of the Act has or has not live force of a decree. Section 26 of the Land Acquisition Act reads as under:
26. Form of awards. - (1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of Sub-section (12) of Section 23, and also the amount (if any) respectively awarded under each of other clauses of the same sub-section, together with the grounds of warding each of the said amounts.
2. Every such award shall be deemed to be a decree and the statement of the grounds of every such ward, a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9), respectively, of the Code of Civil Procedure, 1908.
6. Sub-section (2) of Section 26 of the Act makes it clear that every such order or award passed by the Land Acquisition Judge shall be deemed to be a decree. In my considered opinion, therefore, Article 9 of Schedule 11 will not apply.
Page 0873
7. Section 8 of the Court Fees Act is worth to be noticed while considering Article 1 of Schedule I of the Court Fees Act. Section 8 of the Court Fees Act reads as under:
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 the acquisition of land for public purposes, shall be computed according to the difference between the amount awarded and the amount claimed by the appellant.
8. From bare perusal of the aforesaid provision, it is manifestly clear that a provision has been made for the purpose of application of Court Fees Act in an appeal against an order awarding compensation under the Laud Acquisition Act. The valuation of appeal shall be the amount claimed by the appellant in excess of the amount awarded to him by the order which is the subject matter of appeal. This Section merely provides the provision with regard to calculation of Court-fee in an appeal against an order awarding compensation under the Land Acquisition Act. In other words, the valuation of appeal would be the amount by which the appellant deserves the amount of compensation to be increased.
9. A similar question fell for consideration before a Bench of the Patna High Court in the case of Braja Kewat and Anr. v. Madanlal Agarwalla and Ors. A.I.R. (38) 1951 Patna 608. Lord Reuben, J held as under:
(3) It is contended for the appellants that, if Article 11 of Schedule II does not apply the proper provision is either Clause (iii) or Clause (iv) of Article 17 of Schedule II:
Plaint or memo, of appeal in each of the following suits.
* * * iii. to obtain a declaratory decree where o consequential relief as prayed;
iv. to set aside an award.
The weakness in this contention is that the proceeding in which the award was obtained cannot be described as a suit. The word "suit" is a technical term with a well-understood legal significance. Section 26, Land Acquisition Act, provides that the award made in the proceeding instituted under Section 18 shall be deemed to be a decree, but this does not make the proceeding a suit.
[4] Section 4, Court-fees Act, prescribes that no document of any of the kinds specified in the first or second schedule to the Act as chargeable with fees shall be filed in or received by any High Court in any case coming before such Court in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence or in the exercise of its jurisdiction as a Court of reference or revision unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. As there is in the schedule no particular provision that applies to the present case, we have to fall back on the residuary Article, Art No. 1 of Schedule I, which prescribes an ad valorem court-fee. Some doubt as to the applicability of this Article to appeals in the High Court has been caused by the last few words which occur in Col 1; "presented to any civil or revenue Court except those mentioned in section". This, however, is only due to unskillful Page 0874 drafting (vide Krishna Mohan Sinha v. Raghunandan Pande 4 Pat 336, and it is generally accepted that the Article applies to High Courts, although High Courts are among the Courts mentioned in Section 3. I would suggest that the word "those " occurring at the end of the entry in Col. I refers not to Courts but to the documents mentioned in Section 3.
[5] As regards the manner in which the valuation of the appeal will be computed for the purposes of applying Article 1 of Schedule I, a special provision is contained in Section 8, court-fees Act. This section, has been held to apply not only to appeals in which (he correct ness of the amount of compensation awarded is challenged but also to appeals which concern questions of title, the section being applied on the basis that the appellant claims a certain amount of compensation as representing the value of his interest in the acquired property & he is given nothing or a smaller amount by the decision which he is challenging: Muhammad Suleman v. Ghamandai La A.I.R. (18) 1931 Lah. 343, and Anandalal Chakravarty v. Karnani Industrial Bank, Ltd. 59 Cal. 528. The section, however, occurs in Chap III, Court-fees Act, which relates to "Fees in other Courts & in public offices", in consequence of which Mullick, J observed in Krishna Mohan Sinha's case, that the section does not apply to the appeals filed in the High Court. The section has been applied to appeals in the High Court as long go Kasturi Chetli v. Deputy Collector, Bellary 21 Mad. 269 and Trinayani Dasi v. Krishna Lal 39 Cal. 906 and it was so applied by Rankin, C.J. in Anandalal Chakravarti's case, observing that the heading of the chapter in which the section occurs should not be allowed to cut down the plain meaning of the section. It is unnecessary, to consider the applicability of the section in the present case for it is plain that the result would be the same if the value of the appeal is computed according to the natural meaning of the term. According to the claim of the appellants, they are entitled to the entire amount of compensation awarded. According to the decision, which they challenge & are trying to get set aside, they are entitled to nothing. Hence, the value of the appeal is the entire amount of the compensation awarded.
10. In view of the two conflicting decisions of the Division Bench of the Madhya Pradesh High Court, the question with regard to payment of court-fee on the memorandum of appeal presented under Section 54 of the Land Acquisition Act was referred to the Full Bench for decision in the case of State of Madhya Pradesh v. Seth Gowardhandas . The Full Bench held that advalorem court fee on the memorandum of appeal would be payable under Article 1-A of Schedule I of the Court Fees Act. Their Lordships observed:
15. The view that we have taken above is further strengthened by the provisions contained in Section 54 of the L.A. Act which provide that subject to the provisions of the code applicable to appeals from original decrees, an appeal from an award or any part thereof, in any proceedings, under the L.A. Act shall lie only to the High Court and from any decree of the High Court passed on such appeals, an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code and in Order XLV thereof. Section 54 thus in clear terms provides that the procedure applicable to appeals under the code from original decrees shall also apply to appeals against an award made under L.A. Act, treating the award as if it is a decree of a Court and, in our opinion Page 0875 rightly so, in view of the amended provisions of Section 26(2) of the Act. Again the order passed by the High Court in appeal against the award is also regarded as a decree which is further appealable to Supreme Court. For these reasons also ad valorem court fees under Article 1A, Schedule 1 of the C.F. Act would be payable.
11. A Division Bench of Allahabad High Court in the case of Smt. Leelawati v. State of U.P. AIR 1983 Allahabad 423 took the same view and held as under:
9. Section 8, Court-fees Act, provides for the determination of the amount on which court-fee is payable on a memorandum of appeal against an order relating to compensation. In the absence of any specific article in Schedule I of the Court-fees Act for payment of court fee in such appeal, court fee will be payable ad valorem under Article I of Schedule I. The appellant has thus to pay ad valorem court fee on the difference of the amount of compensation claimed by him. An appeal may be a continuation of suit for certain purposes but as far as court fee is concerned, we are unable to accept the contention of the learned Counsel for the appellant that as no court fee is payable on an application for compensation, no court fee is payable on the memorandum of appeal also. We are of the opinion that the provisions of the Court-fees Act are mandatory and no litigant can avoid payment of court fee when there is a provision for it. We may also refer to the case of Smt. Vindhya basani v. Jadab Singh . The appellant was called upon to pay court fee on the value of the subject matter in dispute. Reliance was placed in the case on AIR 1932 Cal 346 in re Ananda Lal Chakrabutty.
12. In the case of Indore Development Authority, v. Tarak Singh and Ors. , similar question arose as to the amount of court-fee payable in an appeal under Section 54 of the Land Acquisition Act. In the case before the Supreme Court, appeal was filed by the Indore Development Authority aggrieved by the award of higher amount of compensation determined by the Reference Court. It was argued that the appellant is not the claimant and it seeks to avoid the decree which is made by the appellate Court, hence fixed court-fee is payable. Their Lordships of the Supreme Court held that even if in an appeal the appellant seeks to avoid the amount of the higher compensation, ad valorem court-fee is payable. Their Lordships observed:
7. In this context, it is relevant to note Section 8 of the M.P. Court Fees Act which reads thus:
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 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 landowners. Therefore, the appellant is required to pay the court fee on the Page 0876 memorandum of appeal of 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 Section 54, the difference of the amount for which the appeal is filed, ad valorem court fee under Section 8 is required to be paid. Article 11 of Schedule II has no application, since it is expressly covered by Section 8 of the M.P. Court Fees Act.
13. Considering the provisions of Section 2(2) of the Code of Civil Procedure read with Section 26 of the Land Acquisition Act and Section 8 of the Court Fees Act, I have no doubt in holding that in an appeal filed under Section 54 of the Land Acquisition Act, the appellant is required to pay ad valorem court fee.