Gwalior Development Authority vs Mst. Khumania

K.K. Varma, J.

This appeal filed and registered as a miscellaneous appeal, is purportedly one u/s 54 of the Land Acquisition Act, 1894, from the order/award dated 11-2-91 of the District Judge, Gwalior, in MJC No. 45/89.

The heading of the memorandum shows that though it was being valued at Rs. 2,12,877.50, a Court-fees of Rs. 7.50 paise was being affixed. The first point for consideration (before hearing the appeal at the stage of admission) is whether the Court-fees should have been paid ad valorem.

The Appellant had paid Rs. 71,750/- to Tulsi Ram, the owner of the acquired lands, as compensation at the time it took over the possession of the acquired lands on 17-12-1981.

Tulsi Ram, preferred a claim for enhancement of the compensation. Ultimately, the District Judge, Gwalior, entertained the reference in compliance of the judgment of this Court in M. P. No. 1073/88 on 17-4-1989.

The District Judge received the evidence of the parties and awarded Rs. 1,24,500/- as compensation, solatium @ 30% u/s 23 (2) of the Land Acquisition Act and interest @ 9% per annum u/s 28 of the Act. The Appellant has filed an appeal praying in effect for the reduction of the amount under the award to Rs. 71,750/-.

Some provisions of the Land Acquisition Act, 1894, and the Court Fees Act, 1870, are being extracted below so as to facilitate the discussion on the subject under consideration.

Part-III of the Land Acquisition Act, 1894, deals with the subject "Reference to Court and Procedure Thereon" Section 26, which falls in Part-Ill, bears the heading of "Form, of awards". It has two Sub-sections. Sub-section (2) was inserted in the Act by Section 2 of Act XIX of 1921. Section 3 of the aforementioned Act XIX of 1921 substituted the Original Section 54 by the existing Section 54.

Section 26 and 54 of the Land Acquisition Act, 1894, run as follows:-

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 (1) of Section 23, and also the amounts (if any) respectively awarded under such of the other clauses of the same Sub-section, together with the grounds of awarding 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 award a judgment within the meaning of Section 2. Clause (2), and Section 1, Clause (9), respectively, of the Code of Civil Procedure, 1908, (5 of 1908)

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 (the Supreme Court) subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908,and in order XLV thereof.)

(Emphasis supplied.)

Coming to the provisions of the Court-Fees Act, 1870 (No. VII of 1870), the provisions of Section 4 in Chapter II which bears the heading

Fees in the High Court and in the Courts of Small Causes at the Presidency-Towns" run as follows:

Fees on documents filed etc. in High Court in their extra ordinary jurisdiction-No document of any of the kinds specified in the first or second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in case coming before such Court in the exercise of the extra-ordinary original civil jurisdiction;

or in the exercise of its extraordinary original criminal jurisdiction;

In their appellate jurisdiction: -

or in the exercise-of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the Ordinary Original Civil Jurisdiction of the Court) of one or more Judge of the said Court, or of a division Court;

or in exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence; As Court of Reference and Revision:-

or in the exercise of its jurisdiction as a Court of Reference or Revisions;

unless in respect of such document there be paid a fee of an amount less than that indicated by either of the said Schedules as the proper fee for such document,

Article I-A of Schedule I of the Court-Fees Act, which bears the heading "Ad Valorem Court-Fees" as amended by Ordinance No. 3 of 1975 which came into force on 1st July 1975 and was replaced by the Court Fees (Madhya Pradesh Amendment) Act, 1975, (No. 24 of 1975), provides for payment of ad valorem Court-fees on plaint, written statement pleading a set-off or counter claim or memorandum of appeal (not otherwise provided for in this Act) presented to any Civil or Revenue Court except those mentioned in Section 3.

That the Table of rates of ad valorem fees, leviable on the institution of suits in which given the proper ad valorem fees according to the amount or value of the subject-matter of the suits. In these context, the provisions of Section 1-B of the Court-Fees Act come into play, which was inserted by C. P. & Berar Act (19 of 1941) Section 2(sic). The Court-Fees Act as amended above was extended to the whole of Madhya Prrdesh by Section 3 (ii) read with Schedule Part B-1 of the M. P. Taxation Laws (Extension) Act, 1957 (XVIII of 1957), which came into force on 1-11-1956. Section 1-B reads as follows:

1-B. Definition of Memorandum of cross-objection. In this Act, unless there is any thing repugnant to the subject or context ''Memorandum of Appeal'' shall include ''Memorandum of cross-objection'' and ''suit'' shall include an appeal from a decree.

(Emphasis supplied.)

It is, therefore, clear that the reference in the aforementioned Table to the expression ''suit'' means that the expression shall include an appeal from a decree.

Chapter III with the heading "Fees in other Courts and in Public Offices" contains Section 8 which reads as follows:

Section 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 requisition of land for public purposes, shall be computed according to the difference between the amount awarded and amount claimed by the Appellant.

Schedule II of the Court-Fees Act, 1870, which bears the heading "Fixed Fees", as amended by Section 3 of the Court Fees(M. P. Amendment) Act, 1966 (No. 12 of 1966), contains Article 11, which reads as follows

SCHEDULE II FIXED FEES

(Emphasis supplied.)

The Appellant''s learned Counsel Shri N. K. Modi, has submitted in effect that the Appellant has paid Rs 7.50 paise as the proper Court-fees on the memorandum of appeal as required by Schedule If, Article 11 (s) of the Court Fees Act, 1870 (as amended in the State of M. P.). He has relied on Shantilal v. Town Improvement Trust 1977 MPLJ 690, in which the question was referred to the Full Bench: "Whether the Court-fees paid on the memorandum of appeal.

In Diwan Brothers v. Central Bank of India, Bombay (supra), a similar question arose for consideration under the Displaced Persons (Debts Adjustment) Act, 1951. Therein their Lordships have held as follows:

The term ''decree'' used in Schedule II, Article 11 of the Court Fees Act is referable to a decree as defined in Section 2 (2) of the Civil Procedure Code. The decision of the Tribunal Constituted under Displaced Persons (Debts Adjustment) Act either allowing a claim or rejecting a claim, though described as a decree in the Act, does not make it a decree within the meaning of the Court Fees Act. The decision does not fulfil the requirements of a decree within the meaning of Schedule II, Article 11 of the Court Fees Act. Therefore, the memorandum of appeal filed by a person aggrieved by the decision of the Tribunal squarely falls within the ambit of Schedule II, Article 11 of the Court Fees Act and ad valorem Court-fees under Schedule I, Article 1 are not payable.

The crux of the matter is whether the appeal before us is an appeal from a decree in which case the memorandum of appeal becomes chargeable under 2nd paragraph of Section 4 of the Court-Fees Act, 1870, read with Article I-A of the 1st Schedule of the said act; or whether the appeal is one not from decree or an order having the force of a decree, in each case u/s 4 of the Act read with Article 11 of I Ind Schedule of the said Act, a fixed Court-fees of Rs. 7.50 paise is the proper fees.

The appeal before us has been filed u/s 54 of the Land Acquisition Act, 1894, the provisions of which have been extracted at paragraph 8 (supra).

The decision giving rise the present appeal, has been given the name of ''an award'' vide Sub-section (1) of Section 26 of the Land Acquisition Act, 1894, extracted at paragraph 8 (supra.). Sub-section (2) of Section 26 says: ''every such award shall be deemed to be a decree within the meaning of Section 2, Clause (2) of the Code of Civil Procedure''.

Read in the context of the aforementioned definition given to the expression ''an award'', the provisions of Section 54 of the Land Acquisition Act, 1894, which create a statutory right of appeal from an award of the Court, come into play.

Now the provisions of Section 54 provide for an appeal from an award given under Part-Ill of the Act, making the provisions of the Code of CPC which arc applicable to appeals from original decrees to such in appeal of the High Court But the proceedings further say that the formal expression of the final adjudication in the appeal before the High Court shall be a decree and from any such decree an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, read with Order XLV thereof.

The emphasis is that a High Court passes a decree in an appeal preferred u/s 54 from which an appeal lie to the Supreme Court as an appeal from the decree within the meaning of Section 2, Clause (2) of the Code of Civil Procedure, 1908.

It is, therefore, clear that the appeal preferred before us u/s 54 of the Land Acquisition Act, is an appeal from a decree because the provisions of Sub-section (2) of Section 26 read with Section 54 of the Land Acquisition Act, 1894, have made it a decree within the meaning of Section 2, Clause (2) of the Code of Civil Procedure, hence, under provisions of Section 4 read with Article I-A of 1st Schedule of the Court-fees Act, 1870, will be applicable for the purposes of deciding the amount payable on the memorandum of appeal before us.

It is, therefore, clear that the law laid-down in Shantilal v. Town Improvement Trust (1977 MPLJ 690) is not applicable to the facts of the present appeal, because there are no provisions in the M P. Improvement Trust Act, 1960, corresponding to Sub-section (2) of Section 26 of the Land Acquisition Act, 1894. Besides, there is nothing in Section 147 making the decision of the High Court in appeal under Clause (a) of Section 147 of the M. P. Improvement Trust Act, 1960, a decree, and providing for further appeal to the Supreme Court under the Code of Civil Procedure.

Thus, the present appeal is in effect from a money decree because the Appellant is seeking the reduction of the amount under the award. The value of the subject-matter of the appeal, that is, the relief claimed in the appeal is, therefore, the determinant of the valuation of the appeal for the purposes of Court-fees. See, Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another,

The Court-fees payable on the memorandum of appeal is, therefore, chargeable under paragraph 2 of Section 4 of the Indian Court-fees Act, read with Article 1-A of first schedule and the Table annexed thereto. This view finds support in Chhogalal v. Uttam Singh 1961 MPLJ 953 and Rishiraj Singh v. Raghubir Singh IR 1968 MP 228. In Rishiraj Singh''s case, it was also held that such an appeal is a regular first appeal.

In the result, it is ordered that the registration of the present appeal as a miscellaneous appeal (1) be deleted and it be registered and numbered as a regular first appeal. The Appellant shall apply for leave to amend the memorandum of appeal within 7 days so as to indicate the amount of the award it proposes to contest in the appeal. This should involve amendment of the valuation given in the heading of the memorandum of appeal, and a specific incorporation in the relief clause to indicate the total amount which should be reduced from the amount given in the award of the District Court. It is on this amount that ad valorem Court-fees is payable, and shall be paid within three weeks from the date of the incorporation of the indicated amendments on leave to be granted by the Court on a requisite application.