Custodian, Evacuee Property vs Amarnath and Others

Kotwal, J.—In this appeal u/s 52 of the J. and K. 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 court-fee paid on it is inadequate.

To 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, Chhanni Beeja, and Chhanni Himmat 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, claimed 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, Jammu to whom this reference was transferred by the 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.

At the very outset, we may point that the learned Additional District Judge was not right in treating the reference as one made u/s 31. It had 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 u/s 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 claimants, 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.

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 suo motu. 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

Sub-section (2), he is found 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 motu, whether or not such person has appeared before him in the acquisition proceedings 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 claimed an interest in it, for an

interested person, according to the definition of the expression contained in Section 3 (b), includes all persons claiming 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.

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 : (i) the area of the land

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

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

pre-supposes 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 claimant to receive the same. Clearly, therefore, a reference u/s 31 is made at a stage when the award has not

come into existence. The other reason is provided by Sub-section (2) of Section 32, which while making a provision for depositing the amount of

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

receive it, after the 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 the 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 a reference u/s 31

shall not be envisaged, after he has made the award.

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.

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 the parties to receive it, fixed court-fee was payable either under

Article 11 or Article 17(iii) of Schedule II of the Court-fees Act, adding, that even Article 1 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 the sake of ready reference, are

reproduced 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 com puted according to the difference between the amount awarded and the

amount claimed by the appellant.

XX XX X

SCHEDULE I

Ad valorem fees.

Number Proper Fee

Plaint. When such amount or value

Written statement pleading a set-off or exceeds............

counter-claim or memo-randum of appeal

(not otherwise provided for in this Act) or

of cross-objection presented to any Civil or

Revenue Court.

XX XX XX XX

SCHEDULE II

FIXED FEES

Number X Proper fee

XX XX XX

ii. Memorandum of appeal when the (a) â€" to the Governor Four

appeal is not from a decree or an or the High Court or rupees

order having the force of a decree, Minister

and is presented :

Plaint or memorandum of appeal

in each of the following suits :

iii. to obtain a declaratory decree ...... Ten

where no consequential relief is rupees

prayed

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 in 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 made an award in terms of Section 11.

This, however, does not mean that no appeal is competent against an order of a Land Acquisition Act which does not tantamount to an award. We

have in 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 P. C. read with Section 51 of the Act, as there is nothing in the Code, or in the Act itself, which creates a

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

Section 4 of Civil P. C. by its own force makes the provisions of the Code applicable to all matters on which the special or local law is silent. This

section does not mean that the Code would not apply to proceedings of 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.

Decree as defined in Section 2(2), Civil P. C. 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 commences with the filing of a plaint. 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 designata. 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 v. Soorodhonee Debia (1868) 9 SWR 402

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

action has been brought, or a person against whom an action had been brought, in the ordinary restricted sense of the words. Any proceeding 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 a defendant; and the claim, if recoverable, is a cause of action.

A similar view has been taken in A. Mahalinga Kudumban and Others Vs. Theetharappa Mudaliar, , Chikkanna Chettiar alias V.S. Nanjappa

Chettiar Vs. V.S. Perumal Chettiar and Another, ; Loomchand Sait Vs. The Revenue Divisional Officer, Trichy and Others, and Rishiraj Singh and

Others Vs. Raghubar Singh and Others, 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

an appeal would lie by force of Section 96, Civil P. C.

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.

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 plain 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 claim laid 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 claims is that whereas more area has

been acquired, compensation has been awarded for a lesser area. He was 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 claimed 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. 2,000/- per kanai for its recorded area of five kanals. The

appellant claims 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 claimed 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 18 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 a case

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

The same is true of a dispute relating to apportionment of compensation. In such a case also what the appellant actually claims is that whereas

he was entitled to a larger share in compensation, he has been awarded a lesser one. He must, therefore pay court-fee on the amount by which, he

claims, he has been paid less. This amount u/s 8 would represent the difference between the amount awarded and the amount claimed. 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 claims a sum of Rs. 9,000/- on the ground that his share in the compensation is one-half. He shall pay

court-fee on Rs. 3,000/- which would represent the difference between the awarded sum of Rs. 6,000/- and the claimed sum of Rs. 9,000/-. A

dispute relating to the title of the appellant to receive compensation to the exclusion of all 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 re-present the difference between the amount awarded and the amount claimed. To give an example, suppose a

dispute is raised before a Land Acquisition Court by A and B, each claiming the total compensation of Rupees 10,000/- to the exclusion of the

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

entitled to receive the compensation. He shall pay court-fee on Rs. 10,000/- because this indeed would be the difference between the sum claimed

and the sum awarded. In this case the amount claimed being Rupees 10,000/- whereas the amount awarded being nil, the equation would 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 u/s 18.

We are in respectful agreement with the view taken by Rankin, C. J. In Re: Ananda Lal Chakrabutty and Others, that Section 8 itself is not the

charging provision but it merely prescribes the mode of determining the amount on which ad valorem court-fee has to be paid under Article 1 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 1, Schedule I, the figure which is to be taken as the

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

amount claimed by him.

Article 1 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 Sinha Vs. Raghunandan Pandey, , 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

court-fee is payable in terms of Article 1 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 laid down the formula for its determination. Id certemest quod certum reddi potest 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 claimed is lying with the Court, ad valorem court-fee shall have to be

paid on it in terms of Article 1, Section 8 merely speaks of laying a claim to compensation, but not of its recovery. A claim to compensation which

stands already deposited with the Court is as good a claim, as it would be when it is in regard to compensation to be recovered from the Land

Acquisition Officer, or its recovery is claimed from a person to whom it has been already paid pursuant to his award. In both the cases, Section 8

shall have full play. With utmost respect to the learned Judges who took a contrary view in Thammayya Naidu v. Venkataraman-amma, AIR 1932

Mad 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 custodia legis.

Neither Article 11, nor Article 17(iii) 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, nor 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 Sub-section (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 disputes

contemplated by Section 18, payment of fixed court-fee 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 Silva II and Others, , a decision relied upon by Mr. Salaria.

We, on the other hand prefer the view taken in Braja Kewat v. Madanlal Agarwalla AIR 1951 Pat 608 Rishiraj Singh and Others Vs. Raghubar

Singh and Others, and In Re: Ananda Lal Chakrabutty and Others, , though we cannot go to the extent of agreeing with the view expressed by the

learned Judge in AIR 1951 Pat 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 terra 'suit' as we have already held, shall have to be given a wider connotation so as to include even

proceedings commended on a reference made tinder Section 18 or Section 31.

This brings us to the other question as to what court-fee would be payable on an appeal preferred against an order of a Land Acquisition

Court passed by it u/s 31. Such an order being a decree, as already held, Article 11 of Schedule II shall have no application. An order u/s 3f 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 ad-valorem court-fee on the amount or the value of the subject matter

of the dispute. The expression ""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 Rupees

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

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

actual amount of compensation claimed by the appellant. Viewed thus, provisions of Section 8 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 Rishiraj

Singh and Others Vs. Raghubar Singh and Others, that Section 8 would in terms apply to appeals against decrees passed in references made u/s

Section 31 of the Act, it may be pointed out, corresponds to Section 30 of the Central Act.

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 court-fee paid on the

memorandum of appeal does not exceed Rs. 7.50, including process-fee. There can be thus, no manner of doubt that the court-fee paid is grossly

inadequate. Section 4 of the Court-fees Act enacts that no document shall be received in any proceeding unless proper court- fee 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 P. C.,

which is in a way an exception to Section 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 the given circumstances 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 court-fee has occurred due to some mistake on the part of the appellant which is bona

tide. 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.

In the instant case, the appellant relies upon Hakim Martin De Silva Vs. Martin De Silva II and Others, to show that he was misled in paying

the court-fee by the principle laid down in this authority. This argument might have weighed with us, had the court-fee 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 C. M. P. No. 53 of 1979 that the appeal was

incompetent for want of adequate court-fee. The appellant's counsel 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 bona fide mistake, the appellant has been reckless and grossly negligent in paying the court-fee. He does not

deserve the sympathy of the Court. We decline to use our discretion in his favour and reject the appeal which, if filed today on payment of proper

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