Custodian, Evacuee Property vs Amarnath and others

Kotwal, J.

(1) In this appeal under section 52 of the Jammu and Kashmir Land Acquisition Act, 1990, hereinafter referred to as the Act, a preliminary

objection has been raised that the same is liable to be dismissed, as the courtfee paid on it is inadequate.

(2) In accomplish the public purpose of laying out a housing colony in the Railway Head Complex Jammu, land measuring 669 kanals and 17

marlas, belonging to several owners in villages Chhanni Rama, Chhani Beeja, and Chhanni Himat was, in the first phase, acquired by Collector

Jammu, by his award dated 25. 1. 1977. The land was categorised according to its quality, and different rates for different categories were fixed

by him for determining its compensation. Out of this land, Custodian Evacuee Property, Jammu, who. is the appellant before us, was held entitled

to receive compensation for 74 kanals Two persons, namely, Amar Nath and Rattan Singh, who are herein the first and the second respondents

respectively, cLalmed that they and not the Custodian were the owners of these 74 kanals of land and thus entitled to receive its compensation to

the exclusion of the appellant, which too, according to them, had been wrongly assessed by the Collector. They made an application in terms of

Section 18 of the Act, requiring the Collector to make a reference on these two points to district Judge, Jammu. The Collector made a reference

accordingly. Addl. District Judge, treating it to have been made u/s 31 of the Act, eventually held the first and the second respondents exclusively

entitled to receive the compensation assessed by the Collector, since before him, challenge to the adequacy of the compensation was given up by

these respondents. The appellant, feeling aggrieved of this order, has challenged it in this appeal and has paid on it a total court fee of Rs. 7. 50,

including the process fee. This is how the preliminary objection.

(3) At the very out set, we may point out that the learned Additional District Judge was not right in treating the reference as one made under

section 31. It has as a matter of fact neither been made u/s 31, nor could it, in the circumstances of the case, have been made under the said

section. A reference U/s 31 differs from one made under section 18 in more than one way. Firstly, a reference u/s 31 is merely confined to the

question of the apportionment of compensation settled by the Collector amongst its various cLalmants, or to the question as to who out of them is

entitled to receive it. A reference u/s 18, besides these two questions may be made on the question of measurement of the land acquired or/and on

the question of adequacy of the amount of compensation determined by the Collector.

(4) Secondly, the Collector has a discretion to make a reference u/s 31, which he may exercise at any time after he has settled the amount of

compensation. This he may do either on an application made to him by an interested person, or even suomoto. He has, however, no such

discretion u/s 18 Once an interested person has made an application to him in that behalf, which he finds not barred by limitation provided by

Subsection (2), he is bound to make a reference under this section. But, this he can do only on an application made to him by an interested person,

and not suo moto whether or not such person has appeared before him in the acquisition proceeding culminating into the award. It is not open to

him to refuse making a reference on the ground that the person who seeks it is, in his opinion, not an interested person. His award being no better

than an offer to purchase the land at the price determined by him, he has no option but to make a reference to the court, which alone is competent

to determine the title of such person to receive the compensation, once the person making the application has cLalmed an interest in it, for an

interested person, according to the definition of the expression contained in Sec. 3 (b), includes all persons cLalming an interest in compensation.

In case he wrongly refuses to make a reference, he can be compelled to do so by a writ of mandamus, though the aggrieved party in such

circumstances, shall have no right to approach the court directly.

(5) Thirdly, whereas a reference u/s 31 can be made only before the award is made, a reference u/s 18 can be made only after the award has been

made. There are reasons to support this inference. To begin with, an award u/s 11 contemplates decision on three points : (1) the area of the land

acquired : (ii) the amount of compensation payable for it ; and (ii) its apportionment among its cLalmants. Unless the order of the Collector

contains a decision on all aforesaid three points, it con not acquire the status of an award envisaged by Section 11. A reference u/s 31 on the other

hand presupposes inability on the part of the Collector to give a decision on the question of the apportionment of the compensation settled by him.

or on the question of the title of its cLalmant to receive the same Clearly, therefore a reference u/s 31 is made at a stage when the award has rot

come into existence. The other reason is provided by Subsection (2) of Section 32. which while making a provision fo?"" depositing the amount of

compensation, speaks of that alone to which a reference u/s 18 would be competent, in case the interested persons do not consent to receive it,

after Collector has made an award in terms of Section 11. This clearly, implies that after the award has been made, a reference u[s 18 alone is

competent. Lastly, after the award has been filed by the Collector in terms of section 12, it becomes final between him and the persons interested,

and is conclusive evidence of the area of the land acquired, the compensation awarded for it and its apportionment among the persons interested

To assume power in Collector to reopen the award at his sweet will by making a reference u/s 31 will bring section 12 into conflict with, Section

31 and destroy the finality attached to an award. In order to harmonize these two provisions, power in him to make reference u/s 31 shall not be

envisaged, after he has made the award.

(6) Needless to go into other points of distinction between these two types of reference, suffice it to say that in the present case reference was

made by the Collector not merely on the question as to whom the compensation was payable, but also on the question as to whether the amount of

compensation fixed by him was adequate ; a question undoubtedly beyond the purview of section 31. Furthermore, the reference was made by

him after he had made and filed the award. Clearly, therefore, it could not be a reference u/s 31, but could be and in fact was one u/s 18.

(7) The total court fee paid on the memo of appeal, as already noticed is Rs 7.50, which includes process fee as well For the appellant, it has been

contended that section 8 of the Court Fees Act has no application to the present case, as this section applied to only those cases where the dispute

is in regard to the quantum of compensation determined by the Land Acquisition Court. In the instant case, the dispute being not with regard to the

quantum of compensation, but exclusively with regard to the title of parties to receive it, fixed courtfee was payable either under Article 11 or

Article 17 (iii) Schedule If of the Court Fees Act, adding, that even

Article I of Schedule I did not have any application,, because it applied to only those cases where the appeal lay to a court other than a High

Court. These provisions, for sake of ready reference, are be produced as below ;

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 differences between the amount awarded and the

amount cLalmed by the appellant.\

XX XX XX XX XX

Schedule I Ad valorem fees.

Number Proper fee

PLalnt. When such

amount

Written statement or value exceeds,

pleading a setoff or counter

cLalm or memorandum of appeal

(not otherwise provided for in this

Act) or of crossobjection presented

to Court.

SCHEDULE II FIXED FEES

Number X Proper fee

XX XX XX

ii. Memorandum of (a)to the Governor Four rupees

appeal when the or the

appeal is not from a High Court or

decree or an order Minister

having the force of a decree,

and is present:

PLalnt or memorandum

of appeal in each of the

following suit:

(iii) to obtain a declaratory

decree where no consequential

relief is prayed

(8) What court fee in a given case would be payable on the memo of appeal directed against an order of a Land Acquisition Court, shall

necessarily depend upon the provision of law under which the appeal has been filed. Section 52 of the Act gives a right to a party to file an appeal

against an award of Land Acquisition Court, and against no other order. An order by the court on a reference made to it u/s 18 alone is an award

ia terms of Section 26. This section occurs in part III of the Act, the first to occur wherein is Section 18. A reference u/s 18, as already observed,

can be made only after the award has been made by the Collector. Consequently, an order passed by the court on a reference made to it u/s 31 is

not an award for the simple reason that a reference under this section can be made only before the Collector has ma de an award in terms of

Section 11. This however, does not mean that no appeal is competent against an order of a land Acquision Court which does not tantamount to an

award. We have on the Act Section 51 which says that the provisions of Law relating to the procedure in civil actions, unless they may be

inconsistent with anything contained in the Act, shall apply to all proceedings before the Land Acquisition Court. The law relating to procedure in

civil actions is contained in the Code of Civil Procedure, Section 96 whereof provides that an appeal shall lie against every decree passed by a civil

court exercising original jurisdiction, provided it is not a decree passed with the consent of the parties or is not otherwise barred under the Code or

under any other law for the time being in force If an order passed by a Land Acquisition court u/s 31 can be said to be a decree, then surely an

appeal would lie against it u/s 96 Civil Pr. Code read with Section 51 of the Act, as there is nothing in the Code, or in the Act its. If, which creates

a bar against such an appeal. The insult, in our opinion, would have remained the same, even if Sec. 51 were not to find place in the Act, for

section 4 of the Code of Civil Procedure by its own force makes the provisions of the Code applicable to all matters on which there special or

local law is silent. This section does not mean that the Code would not apply to proceedingsof civil nature under any special or local law, but only

says that in the event of inconsistency between the provisions of the Code and the provisions of the special or local law, the former shall give way

to the latter, implying thereby that in the absence of any such inconsistency the former shall apply.

(9) Decree as defined in Section 2 (2) Civil Procedure Code means a formal expression of an adjudication which conclusively determines the rights

of the parties with regard to all or any of the matters in controversy between them in a suit. The word ""suit"" has not been defined in the Code,

though it is generally understood to mean a civil proceeding that commence with the filing of a pLalnt. A Land Acquisition Court in a reference u/s

31, there can be no manner of doubt, conclusively decides important questions of the apportionment of, or title to the compensation settled by the

Land Acquisition Officer, in so far as the said court is Concerned. The District, Judge, or any other officer appointed in this behalf, acts as a court

and not as a persona designate. In case a restricted meaning were to be given to the word ""suit"", then the party adversely affected by the court's

decision on a reference made to it u/s 31 would be inevitably deprived of a very valuable right of appeal, which would be there in case the same

decision, in similar circumstances, and on the same material, were to be given by the same court in a reference u/s 18. This would naturally mean

hardship to the aggrieved party for no specious reason Surely, this could not have been the intention of the legislation. Such an intention can hardly

survive the attack of Article 14 of the Constitution An extended meaning has, therefore, to be given to the word ""suit"" with a view to carrying out

the object of the Act. We are in respectful agreement with the connotation given to the word ""suit"" by Sir Barens Peacock in Hurro Chunder Roy

Chowdhury Vs. Sooradhones Debia, 9 W. R 402 :

The word Suit"" does not necessarily mean an action nor do the words ""cause of action"" and ""defdt"" necessarily mean cause upon which an action

has been brought, in the ordinary restricted sense of the words. Any proceedings in a court of Justice to enforce a demand is a suit; the person

who applies to the court is a suitor for relief; the person who defends himself against the enforcement of the relief sought is defendant ; and the

cLalm, if recoverable, is a cause of action

(10) A similar view has been taken in A. Mahalinga Kudumban and others Vs. Thectharrppa Mudalier, AIR 1929 Madras 223, Chikkanna

Chettia Vs. V. S. Perumal Chettiar and another, AIR 1940 Madras 474 (FB), Loomchand Sait Vs. The Revenue Divisional Officer Trichy and

others, AIR 1975 Madras 177, and Rishiraj Singh and others Vs. Raghubar Singh and others, AIR 1968 Madhya Pradesh 228. We are,

therefore, clearly of the opinion that a finding recorded by a Land Acquisition Court on the question of apportionment of compensation settled by

the Collector, or on the question of title of the parties to receive it, is a decree against which on appeal would lie by force of Section 95 Civil Pr :

Code.

(11) Section 8 speaks of the amount of compensation ""awarded"". This section therefore clearly refers to an award of the Land Acquisition Court.

In terms of Section 26, as already pointed out, no order of a Land Acquisition Court, other than the one passed by it on a reference made to it u/s

18, can be said to be an award. It is this order alone against which an appeal u/s 52, lies to the High Court. Section 8 cannot thus apply to an

order passed by a Land Acquisition Court on a reference made to it u/s 31, for such an order, even though it may be a decree is yet not an award.

(12) There is, however, no room for limiting the application of section 8 to only those cases in which the quantum of compensation alone is in

dispute. This section, on its pLaln language, is much wider in amplitude and covers all cases in which a dispute in regard to compensation is raised

in one form or the other. Every dispute raised in an appeal against an award of a Land Acquisition Court, be it with regard to the measurement of

the Land acquired be it with regard to the amount of compensation, or be it with regard to its apportionment, or the persons to whom it is payable,

directly or indirectly relates to the cLalm Lald by the appellant to the compensation, to which provisions of section 8 would be necessarily attracted

Take for example a dispute raised in regard to the measurement of land. Here also what the appellant really cLalms is that whereas more area has

been acquired, compensation has been awarded for a lesser area. He has, therefore, to pay court fee on the excess amount which, according to

him, may be payable in the event of correct measurement of the land acquired, as this would indeed represent the difference between the amount

awarded and the amount cLalmed within the meaning of Section 8. To illustrate it further, suppose the Land Acquisition Court has awarded a sum

of Rs 10,000/ as total compensation for a particular survey number at the Rate of Rs. 2000/per kanal for its recorded area of five kanals The

appellant cLalms a total compensation of Rs. 12, 000/on the ground that the recorded area of the survey number is wrong and that its true area is

six kanals. He shall pay court fee on Rs. 2,000/. the same being the difference between the awarded sum of Rs. 10,000/ and the cLalmed sum of

Rs. 12,000/ A dispute in regard to restoration of land, occupied in excess of the land acquired is beyond the scope of section 19 and cannot be

raised in the garb of a dispute relating to the measurement of the land acquired. Possession of the Collector over the excess land in such case

would be clearly that of trespasser, for which the owner may have to seek a proper remedy elsewhere.

(13) The same is true of a dispute relating to apportionment of compensation. In such a case also what the appellant actually cLalms is that

whereas he has entitled to a larger share in compensation, he has been awarded a lesser one. He must, therefore, pay courtfee on the amount by

which he cLalms he has been paid less. This amount u/s 8 would represent the difference between the amount awarded and the amount cLalmed.

Here also, suppose the Land Acquisition Court has awarded a sum of Rs. 6,000/ in favour of the appellant as representing his one third share in

the total compensation of Rs. 18,000/ The appellant cLalms a sum of Rs. 9,000/pn the ground that his share in the compensation is onehalf. He

shall pay courtfee on Rs. 3,000/which would represent the difference between the awarded sum of Rs 6,000/ and the cLalmed sum of Rs, 9, 000.

A dispute relating to the title of the appellant to receive compensation to the exclusion of in 11 others is none too different, In this case also he has

to pay court fee on the entire amount of compensation, for in such a case he not having been found entitled to receive any part of it, the entire

compensation amount itself would represent the difference between the amount awarded and the amount cLalmed. To give an example, suppose a

dispute is raised before a Land Acquisition Court by A and B, each cLalming the total compensation of Rs. 10,000/ to the exclusion of the other.

The court holds A entitled to receive the entire compensation .B files appeal against the said award on the ground that he and not A is entitled to

receive the compensation. He shall pay courtfee on Rs. 10,000/ because this indeed would be the difference between the sum cLalmed and the

sum awarded. In this case the amount cLalmed being Rs. 10,000/whereas the amount awarded being nil, the equation be : Rs, 10,000/ 10,000/

Section 8 would thus apply to all kinds of adjudications given by a Land Acquisition Court on a reference made to it under section 18,

(14) We are in respectful agreement with the view taken by Ranking C. J. in re Ananda Lal Chakrubutty AIR 1932 Calcutta 364 that section 8

itself is not the charging provision but it merely prescribes the mode of determining the amount on which ad valorem fee has to be paid under

Article I of Schedule I, which indeed is the charging provision. His Lordship observed :

The purpose of section 8 is to say that when you come to make a charge under Article I, Schedule I, the figure which is to be taken as the

appropriate figure under column 2 is the figure to be computed by finding out the difference between the amount awarded to the appellant and the

amount cLalmed by him.

(15) Article I of Schedule I no doubt does not specifically speak of an appeal to the High Court, nevertheless, as pointed out by their Lordships in

Krishna Mohan Singh Vs Rughunandan Pande, AIR 1925 Pat. 392 (FB), this omission perhaps occurred due to an unskilled drafting and that this

article applies as much to appeals to the High Court, as it applies to appeals to Civil courts subordinate to it. We have, therefore, no hesitation in

holding that ad valorem courtfee is payable in terms of Article I of Schedule I on an appeal preferred against an award of the Land Acquisition

Court, or a part thereof, which it has given on a reference made to it u/s 18, and the amount on which ad valorem court fee is payable has to be

worked out according to the method given in Section 8 It shall not matter whether the Land Acquisition Court has itself determined the amount of

compensation, or has merely Lald down the formula for its determination. Id certemest quod certum reddi protest i. e. that is certain which can be

reduced to a certainty. Nor shall it matter that the compensation money is lying with the court itself and is not to be recovered either from the Land

Acquisition Officer, or from any other person to whom it has been already paid. Even if the amount cLalmed is lying with the court, ad valorem

courtfee shall have to be paid on it in terms of Article 1. Sec. 8 merely speaks of laying a cLalm to compensation which stands already deposited

with the Court is as good a cLalm, as it would be when it is in regard to compensation to be recovered from the Land Acquisitition Officer, or its

recovery is cLalmed from a person to whom, it, has been already paid pursuant to his award. In both the cases, sec, 8 shall have full play. With

utmost respect to the learned Judges who took a contrary view in Thammayya Naidu Vs Venkataramanamma and another, AIR 1932 Madras

438 we cannot persuade ourselves to hold that fixed court fee payable on a mere declaration would be enough in case the amount of

compensation stands already deposited with the court, or to put it in other words is in custodian legis.

(16) Neither Article II, nor Article 17 (Hi) of Schedule II shall apply to an appeal u/s 52. Article 11 shall have no application because it applies to

only such orders as are neither decrees, not do they have the force of a decree. An award made by a Land Acquisition Court on a reference made

to it u/s 18 is a decree in terms of subsection (2) of Section 26, as such, application of this article shall be clearly excluded. Likewise, Article 17

(iii) too shall have no application because section 8 having universal application to decisions of Land Acquisition Courts on all kinds of dispute

contemplated by Section 18, payment of fixed courtfee under this Article would be out of question. These are exactly the reasons which impel us

to take a view different from the one taken In Hakim Martin De Silva Vs. Martin De Silve II and others, AIR 1957 Raj 275, at decision relied

upon by Mr. Salaria. We, on the other hand prefer the view taken in Braja Kewat and another Vs. Madanlal agarwalia and others, AIR (38) 1951

Patna 608, Rishiraj Singh and others, Vs. Raghubar Singh and others, AIR 1968 Madhya: Pradesh 228, and in reAnanda Lal Chakrubutty AIR

1934 Cal 346, though we cannot go to the extent of agreeing with the view expressed by the learned Judge in AIR 1951 Patna 608 (Supra) that

application of Article 17 (iii) shall be excluded because a reference u/s 18, or section 31, is not a suit to attract the provisions of this article. The

term 'suit' as we have already held, shall have to be given a wider connotation so as to include even proceedings commenced on a reference made

under section 18 or section 31.

(17) This brings us to the other question asto what courtfee would be payable on an appeal preferred against an order of a Land Acquisition Court

passed by it under section 31. Such an order being a decree, as already held, Article 11 of Schedule II shall have no application. An order u/s 31

not being an award, section 8 too shall have no application. Even Article 17 (iii) shall not apply because there being no provision in the Act

authorising a Land Acquisition Officer to deposit the compensation amount with the land Acquisition Court before making a reference to it u/s 31,

the appellant shall have to claim recovery of the compensation amount from the Land Acquisition Officer, and the said amount thus not being in

custodia legis, a mere declaration in terms of this order would be wholly inappropriate. The only provision applicable to such appeals would be

one contained in Article 1 of Schedule I, and the appellant shall have to pay advalorem court fee on the amount or value of the subject matter in

dispute ""occurring in this article refers to the value of the subject matter in dispute in the appeal, and not to the value of the subject matter in the

order appealed against. To give an illustration, suppose the Land'

Acquisition Court has on apportionment of the compensation worked out the share of the appellant at Rs. 5,000/ but the appellant claims that he is

entitled to Rs 7,000/. The value of the subject matter in appeal shall be Rs. 2,000/ and not Rs. 5,000/ or Rs. 7,000/ Suppose in another case the

Land Acquisition Court has not found the appellant entitled to any share, value of the subject matter in appeal against such an order would by the

actual amount of compensation claimed by the appellant. Viewed thus, provisions of Section 1 would apply to appeals against decrees passed in

references u/s 31 in spirit, though not in letter The net/result no doubt may be the same, still it is difficult to subscribe to the view taken in AIR 1968

Madhya Pradesh 228 (Supra) that Section 18 would in terms apply to appeals against decrees passed in references made u/s 31. Section 31 of

the Act, it may be pointed out, corresponds to Section 30 of the Central Act.

(18) Total compensation for 74 kanals of land to which a claim was laid by respondents 1 and 2, and which was also allowed by the learned Addl,

District Judge, if worked out according to the rates fixed by the Collector would run into several thousand rupees. But, the courtfee paid on the

memorandum of appeal does dot exceed Rs. 7. 50, including processfee There can be thus, no manner of doubt that the courtfee paid is grossly

inadequate. Section 4 of the Court fee Act enacts that no document shall be received in any proceeding unless proper courtfee has been paid on It.

It follows that a memorandum of appeal which is not stamped or is even insufficiently, stamped, will be non est. Section 149 Civil Pr. Code, which

is in a way an exception to Sec. 4 is an enabling provision and empowers the court to allow the appellant to make up the deficiency in court fee,

and once it is done, the document shall be validated retrospectively from the date of its presentation. But, to exercise or not to exercise such a

power entirely lies in the discretion of the court, which it has to exercise in given circumstance of a case not arbitrarily or capriciously, but judicially,

more especially, when a valuable right of limitation has accrued in favour of the opposite party. The court will exercise its discretion in case it is

satisfied that the omission in payment of adequate courtfee has occurred due to some mistake on the part of the appellant which is bona fide.

Recklessness or gross negligence on his part can hardly evoke any sympathy of the court and persuade it to exercise its discretion in his favour.

(19) In the instant case, the appellant relies upon AIR 1957 Raj. 275 (Supra) to show that he was misled in paying the courtfee by the principle

laid down in this authority. This argument might have weighed with us. had the courtfee been in fact paid in terms of this authority. Actually this is

not so, for a minimum court fee of Rs. 10/ was payable even according to this authority. Not only that, the appeal was filed on 18. 5. 1979. An

objection was taken on behalf of respondents 1 and 2 on 1. 6. 1979 in CMP No 53 of 1979 that the appeal was incompetent for want of

adequate court fee. The appellant'scounsel acquired knowledge of this objection on 1. 6. 1979 itself when he received a copy of the said'

objection petition. He remained inert and did not take any step to make up the deficiency, though he could have done so at that stage without

facing any difficulty, as the period of limitation for filing the appeal had not expired till then. We have, therefore, no doubt in our mind that far from

being misled due to a bonafide, mistake, the appellant has been reckless and grossly negligent in paying the courtfee, He does not deserve the

sympathy of the court. We decline to use our discretion in his favour and reject the appeal which, if file today on payment of proper courtfee,

would be clearly barred by time. In the peculiar circumstances of the case, we leave the parties to bear their own costs.