Sourendra Mohan Banerjee vs Manick Lal Banerjee And Others

Bijayesh Mukherji, J.—Here is another fiscal matter referred to me, for final decision, u/s 5 of the Court-Fees Act 7 of 1870. For certain land, situate in mouza Sultanpur, within the jurisdiction of Dum-Dum Police-Station, requisitioned in the first instance on March 25, 1942, under sub-rule 1, rule 75A, of the Defence of India Rules 1939, and acquired ultimately on March 27, 1947, u/s 5 of the Requisitioned Land (Continuance of Powers Act 17 of 1947, read with section 3 ibid., - an acquisition which got going u/s 24, proviso (b), of the Requisitioning and Acquisition of Immovable Property Act 30 of 1952 ("Act 30" hereafter, for short) -, the Governor appoints Shri B. C. Das Gupta, Additional District & Sessions Judge, 24-Parganahs, an arbitrator, u/s 8, sub-section (1), clause (b), of "Act 30" and all other enabling provisions, for determination of the compensation payable for such acquisition, no less for determination of the person or persons who are entitled to the compensation, as also for apportionment thereof, if necessary. The relevant notification is No. 38-Regn. dated January 3, 1966, published in the Calcutta Gazette dated February 3 1966, Part 1, at page 190.

Before the arbitrator so appointed, the appellant claims: ''of the land acquisitioned, I am the sole purchaser from the outgoing owners. Ergo, I am entitled to the entire compensation money. The respondents, none else that the appellant''s brother and the sons and widow of another deceased brother, riposte : ''The purchase by the appellant was qua Karta of the joint family and that too with the joint family fund. So, the entire compensation money he cannot get.''

The arbitrator dismissed the claim of the appellant. Hence the appeal valued at Rs. 8,820, the amount claimed and refused, but stamped with a court-fee of no more than Rs. 5.

The Stamp Reporter will not pass it by. He computes the amount of fee payable on Rs. 8,820 as Rs. 690 under schedule 1, article 1, of the Court-Fees Act, and deducts Rs. 5, the fee already paid, therefrom, leaving a balance of Rs. 685 which he says the appellant must pay u/s 8. The appellant demurs. The proper provision to be invoked here, he says, is not sec. 8, but sch. II, art. 11, prescribing a fee of Rs. 5 which the memorandum of appeal does bear.

This is the difference between the Stamp Reporter, the officer whose duty it is to see that proper fees are paid, and the appellant. I am now called upon to resolve this difference by a "final decision," after the matter has been routed, as usual, through the Taxing-Officer and the Chief Justice.

I am clear in my mind that, in a case of this nature, section 8, upon the plain words it contains, must prevail over article 11, schedule II. The reasons which weigh with me in the judgment just delivered in (1) Kali Gopal Chatterjee v. T. Banerjee and others, F.A.T. No. 3955 of 1965 (since reported in 71 CWN p. 662) apply also mutatis mutandis.

That apart, in (2) Satya Charan Sur Vs. State of West Bengal, , also a reference u/s 5 of the Court Fees Act, Banerjee, J., seized of an appeal, u/s 11 of "Act 30", from an award u/s 8, sub-section (1), clause (c), necessarily also of "Act 30", holds that section 8 of the Court Fees Act, not article 11, schedule II, governs the appeal, by which the appellant claims Rs. 29,275, the arbitrator having awarded him Rs. 4,378-15-6 only. More, his Lordship holds, the amount of fee is payable ad valorem under schedule I, article 1, of the Court Fees Act, on the difference between Rs. 29,275, the amount claimed by the appeal, and Rs. 4,378-15-6 pies, the amount awarded by the arbitrator. No doubt, I am seized of an appeal from an award u/s 8, sub-section (1), clause (f), of "Act 30", which provides for apportionment. But that makes no difference. The governing principle appears to be the same. You claim more than what you have been given. Therefore, you must pay the court fee on the difference between the two, u/s 8.

I am asked on behalf of the appellant to go by Wadia, J.''s decision in (3) Hirji Virji Jangbari v. Government of Bombay, AIR 1945 Bombay 348, in preference to Banerjee, J.''s, Wadia, J., applies article 11, schedule II, instead of section 8, to an appeal of this class. But that I cannot very well do, because Banerjee, J., expressly dissents from the judgment of Wadia, J. And Banerjee, J.''s decision is binding on me, unless it can be regarded as per incuriam. But is cannot be so regarded.

This evokes the suggestion that I refer the matter to a larger Bench. That also I cannot bring myself to do for two reasons. The first is that I am in entire agreement with Banerjee, J., if I may say so, with respect. Sure enough, "order" does not stand alone in the text of section 8; it goes with "relating to compensation under any Act for the time being in force for the acquisition of land for public purposes"- words which the whole gamut of legislation right from the Defence of India Rules 1939 down to "Act 30" of 1952 (under which the instant acquisition has been made and held) fits so nicely. Why travel then to the Procedure Code 5 of 1908 and the definition of "order" in its section 2, sub-section (14), as Wadia, J., does, to get at its meaning ? So I say, with the greatest respect. Section 8 carries its own lexicon.

The second reason is that the reference being what it is : one u/s 5 of the Court Fees Act, I have not the power to refer it, again to a larger Bench. I have not, because under the very terms of section 5, this reference is "for the final decision of such judge as the Chief Justice shall appoint specially in this behalf," omitting the words that are not necessary. I am the judge appointed so. Hence, all I can do under the statute is to render "the final decision," for which I cannot pass it on to another Bench.

A somewhat similar point arose before Buckland, J., but u/s 429 of the Code of Criminal Procedure in what is called ''a third judge reference'' : (4) Ishan Chandra Samanta v. Hridoy Krishna Bose, (1925) 39 CWN 47. Said his Lordship :

Under section 429, Criminal Procedure Code, the third Judge before whom the case is laid is required to deliver his opinion and the judgment or order shall follow such opinion. That does not enable me to refer the point to the Full Bench.-

even though that was a point on which Buckland, J., as the third Judge was differing from a division of this Court presided over by two judges.

The Appellate Side Rules of this court point to the same conclusion: that I cannot refer the matter to a larger Bench. Under proviso (i) to rule 1, chapter 11 ibid "it shall be competent for one judge to hear" matter listed "in the subjoined schedule" and "to send back any particular case he thinks fit to a Division Bench taking such cases for disposal." A reference u/s 5 of the Court Fees Act is not a matter listed in the schedule. So, that way too. I cannot refer this reference to a larger Bench. The conclusion I have, therefore, come to is that the further amount of fee payable under the Court Fees Act 7 of 1870 (section 8 read with schedule 1, article 1) is Rs. 685 which, I direct, the appellant do put in by July 31, 1967, failing which this appeal shall not be accepted.