Union of India vs Girdhari and Another

S.S. Sandhawalia, C.J.—Whether the court-fee payable on a Memorandum of Appeal under S. 11 of the Punjab Requisitioning and acquisition of Immovable Property Act. 1953, has to be ad valorem in accordance with S. 8 read with Sch. I, art. 1 of the Court-fees Act, 1870, or is a fixed one under Sch. II, Art. 11 of the said Act is the pristinely legal question which falls for determination before full Bench. More pointedly at issue is the correctness of the Division Bench judgment, (in this context) in Kanwar Jagat Bahadur Singh Vs. The Punjab State, .

In view of the purely legal nature of the question, it is indeed unnecessary and wasteful to advert to the facts. It suffices to say that there is a patent discordance of judicial opinion with regard to the court-fee payable on a Memorandum of Appeal u/s 11 of the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953 (hereinafter called ''the Act''). in two Single Bench judgments of this Court in C. M. No. 2091-C-II-81 in F. A. O. No. 269 of 1979 (Kanwaljit Singh v. State of Punjab), decided on Sept. 3, 1979; and, F. A. O. No. 185 of 1980 (Maha Singh v. State of Haryana through Senior Sub Judge, Gurgaon as Arbitrator), decided on Dec. 15, 1980. The issue has, therefore, been pointedly raised with regard to the court-fee payable on Cross-objections No. 36 of 1981 in F. A. O. No. 466 of 1980. (Union of India v. Girdhari Lal), and the matter has been placed before this Full Bench for an authoritative decision.

It appears to me that for once the strict discipline of the doctrine of precedents cuts the Gordian Knot of controversy cleanly in this context. The issue is now clinched by a binding precedent of the final Court. This obviates any consideration on first principles and even on the language of the statute because I am inclined to take the view that the ratio of Sahadu Gangaram Bhagade Vs. Special Deputy Collector, Ahmednagar and Another, , now squarely governs the issue and it, therefore, suffices to indicate how the same is clearly and inexecrably applicable in the present case as well.

It is apt to advert at the very outset to the Division Bench judgment in Kanwar Jagat Bahadur Singh Vs. The Punjab State, , which as yet holds the fields within this jurisdiction. Therein, the identical question before us had come up for consideration. In taking the view the Division Bench was primarily influenced by the undermentioned four premises:--

(i) that Section 8 of the Court-fees Act was not the charging section, and in fact the charging provision were Schedules I and II thereof, with the result that Sch. II, Art. 11 would govern the issue:

(ii) that the Award of the Arbitrator under the Act not being a decree or an order having the force of a decree, the matter would come within the language of Schedule II, Art. 11 of the Court-fees Act.

(iii) the primary reliance was placed on the single Bench judgment in Hirji Virji Jangbari Vs. The Government of Bombay, and the view therein was unreservedly followed, and:

(iv) the Division Bench dissented from the contrary view of Rankin, C. J., in In Re: Ananda Lal Chakrabutty and Others, and in Debi Din Vs. Secretary of State, .

That all the aforesaid premises have now been completely over-turned by Shahadu Gangaram Bhagade''s case AIR 1971 SC 1987 ) (supra) thus shattering cornerstone of the ratio in Kanwar Jagat Bahadur Singh Vs. The Punjab State, appears to me as manifest. In order to appreciate this, one has to keep in mind that the relevant provisions of Section 7(1) of the Bombay Court-fees Act 1959 which had fallen for interpretation in the Bombay High Court and later before their Lordships of the Supreme Court ad well, and those of Section 8 of the Court-fees Act, 1870, are in pari materia and it is, therefore, apt to juxtapose them against each other:--

(See table below)

S. 8 of the Court-fees Act. 1870 S. 7(1) of the Bombay Court-fees Act.

"The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation unde any Act for the time being in force for the public purposes, shall be computed according to the difference between the amount awarded and the amount claimed by the appellant." "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."

Having noticed the identity of the two aforesaid provisions, it deserves highlighting that the identical issue now before us came up for consideration before a Division Bench in The Chatusshakhiya Brahmavrinda Gayaran Trust Vs. The Union of India (UOI), in the context of Section 7 of the Bombay Court-fees Act. A perusal of the judgment discloses that the crucial question before the Bench was the correctness of the earlier view of the Bombay High Court in Hirji Virji Jangbari Vs. The Government of Bombay, . In an exhaustive judgment which now bears the seal the approval by the final Court, the Division Bench preferred the ratio expounded by Rankin, C. J., in In Re: Ananda Lal Chakrabutty and Others, , after extensively quoting therefrom. they also specifically referred to the view of this Court in Kanwar Jagat Bahadur Singh Vs. The Punjab State, ), and in an analysis which is remarkable in its detail, they in terms dissented therefrom. Consequently, the earlier Bombay view in Hiraji Virji Jangbari''s case (supra) was overruled and it was in terms held that the court fee payable on the memorandum of appeal preferred against a compensation Award would be ad valorem, in accordance with Section 7(1) of the Bombay Court-fees Act read with Sch. I Art. 3 thereof.

Now what seems to conclude the matter is the fact that an identical question came to be agitated before the final Court in Sahadu Gangaram Bhagade Vs. Special Deputy Collector, Ahmednagar and Another, , again in the context of the Bombay Court-fees Act. Apparently, the arguments which had earlier found favour in Kanwar Jagat Bahadur Singh''s case (supra) were raised before their Lordships as well, but met summary rejection at their hands. As regards the stand that S. 8 of the Court-fees Act being not the charging section and, therefore, Schedule II, Art. 11 would apply, their Lordships conclusively repelled the same with the following observations:--(at p. 1890)

"This provision is similar to Section 8 of the Court-fees Act, 1870. It clearly applies to an appeal filed u/s 11 of the Act. It is true that the provision is not a charging section. It only provides for the computation of the court-fee payable. But that provision makes it clear that it relates to the computation of a court-fee payable on ad valorem basis. In can have no connection with any Article providing for the payment of fixed Court-fee. Therefore the computation provided under that provision can only be of a Court-fee payable under one or the other articles in Schedule 1........................"

Similarly dealing with the contention that the Award of the Arbitrator under the Act not being a decree or an order having the force of a decree and, therefore, the matter would be out of the ambit of Section 7(1) of the Bombay Court-fees Act and come within the Schedule II thereof their Lordships of the Supreme Court categorically rejected the same in the following terms:--

"We see no force in the contention that before Section 7(1) of the Bombay Court-fees Act. (1959), can be attracted to an appeal, the order under appeal must have the force of a decree. That section does not say so. It would not, therefore, be proper on our part to add the words "having the force of a decree" after the word ''order'' in Section 7(1). In fact that section is so plain as not to require any interpretation. In that view, it is not necessary for us to consider any of the Articles in Sch. II of the Bombay Court-fees Act, 1959. All that we have to see is under which Article we have to see is under which Article of Schedule I, the Court-fee is payable....................................."

Then adverting to see earlier view of Rankin, C. J. In Re: Ananda Lal Chakrabutty and Others, , their Lordships, in terms quoted therefrom, and expressly approved enunciation therein.

Lastly, their Lordships approved the overruling of the earlier view in Hirji Virji Jangbari Vs. The Government of Bombay, , with the following concluding observations:--

"For the reasons mentioned above, we think that the decision of the High Court in The Chatusshakhiya Brahmavrinda Gayaran Trust Vs. The Union of India (UOI), , is correct. In this view, it is not necessary for us to consider the correctness of the decision of the Punjab High Court in Kanwar Jagat Bahadur Singh v. Punjab State I. L. R. (1957) P&H 142 : (AIR 1957 Punj 32).

It would be manifest from the above that all the four premises on which the ratio of Kanwar Jagat Bahadur Singh Vs. The Punjab State, (rested have now been authoritatively demolished. the contentions accepted therein have been expressly rejected by their Lordships of the Supreme Court and the judgment in Hirji Virji Jangbari Vs. The Government of Bombay, , which was its sheet-anchor, now stands overruled. In Re: Ananda Lal Chakrabutty and Others, which had been expressly dissented from, has now been reaffirmed in no uncertain terms by the final Court. It would thus appear that Kanwar Jagat Bahadur Singh''s case (supra), can no longer hold the field in view of the categoric and authoritative enunciation of the law in Sahadu Gangaram Bhagade Vs. Special Deputy Collector, Ahmednagar and Another, .

I would equally wish to dispose of a rather halfhearted argument that Kanwar Jagat Bahadur Singh''s case (supra), has not been expressly overruled by their Lordships of the Supreme Court in view of the quotation therefrom (in paragraph 10 above in Sahadu Gangaram Bhagade''s case). It deserves highlighting that the Bombay High Court in Chatusshakhiya Brahmavrinda Gayaran Trust''s case (1968) Bom LR 407) (supra), had expressly dissented in detail from Kanwar Jagat Bahadur Singh''s case (supra) and in specifically approving the former, their Lordships would necessarily disapprove of the ratio in the latter case. A larger (closer?) reading of the Supreme Court judgment leaves no manner of doubt that Kanwar Jagat Bahadur Singh''s case (supra), is no longer good law. The only construction possible on the concluding observations made by their Lordships is that having settled the declare the law to the contrary, they did not deem it necessary to individually consider the overrule other judgments including that in Kanwar Jagat Bahadur Singh''s case (supra).

Now apart from the binding precedent of the final Court, in the context of the Bombay Court-fees Act, it appears that the weight of precedent under the Court-fees Act of 1870, is equally on the other side. It was the admitted case before us that the High Court of Bombay and Andhra Pradesh have, in terms expressed their dissent from the view of Kanwar Jagat Bahadur Singh Vs. The Punjab State, ). The Calcutta. Allahabad and even our predecessor High Court of Lahore in Puran Chand v. Emperor AIR 1926 Lah 343, have consistently taken a contrary view. Learned counsel for the respondent, even though pressed, was unable to cite any judgment which still holds the fields in consonance with Kanwar Jagat Bahadur Singh''s case (supra).

To conclude, it must now be held that Kanwar Jagat Bahadur Singh''s case (supra), is no longer good law and the same is hereby overruled.

As a necessary consequence of the above, it would follow that all later single Bench judgments of this Court, taking the view in line with Kanwar Jagat Bahadur Singh''s case (supra), are erroneously decided. We would, therefore, overrule Union of India v. Virsa Singh (1969) 81 P&H LR 340 (1) and, F. A. O. No.269 of 1979 (Kanwaljit) Singh v. State of Punjab, decided on Sept. 3, 1979.

In the light of the aforesaid discussion, the answer to the question posed at the outset is rendered to the effect that the court-fee payable on a memorandum of appeal, under S. 11 of the Act has to be ad valorem in accordance with S. 8 read with Sch. 1 Art. 1 of the Court-fees Act, 1870.

In view of the consistent stream of precedent in this Court, which we have no reversed, the cross-objector must obviously be afforded some time to make up the deficiency in the court-fee. We accordingly allow a period of two months to do the needful.

Reference answered