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Yamunabai Govindrao Mahajan and anr. Vs. Nagpur Improvement Trust, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 434 and 477 of 1971
Judge
Reported inAIR1977Bom405
ActsConstitution of India - Article 31(2) and 31(5); Bombay Court Fees Act, 1959 - Schedule - Articles 1, 15 and 31; Land Acquisition Act, 1894 - Sections 3, 11, 12(1), 18, 19, 19(1), 20, 23, 24, 53 and 54; Nagpur Improvement Trust Act, 1936 - Sections 61 and 62; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order XXXIII
AppellantYamunabai Govindrao Mahajan and anr.
RespondentNagpur Improvement Trust, Nagpur and ors.
Appellant AdvocateW.G. Deo, Adv.
Respondent AdvocateM.P. Badar, Adv. and ;V.P. Salve, Asstt. Govt. Pleader
Excerpt:
it was ruled that article 15 of schedule i of the bombay court fees act, 1959, seeking levy of one-half ad valorem court fees, in the matters of reference under section 18 of the land acquisition act, 1894, is not unconstitutional - also, it cannot be treated in the said manner under article 31(2) of the constitution of india. - - sub-article (2) is satisfied once the compulsory acquisition is by the authority of law and the said law as far as the present controversy is concerned provides for the principles on which and the manner in which the compensation is to be determined and given. constitution clearly contemplates such a trivalent measure for acquisition of property for public purpose to put it otherwise the requirements are simply three, viz. by that prescription we fail to see.....masodkak, j.1. these two petitions arise out of land acquisition proceedings initiated for the purpose of nagpur improvement trust relating to khasra nos. 72, 73, 74 and 75 of mouza pardi, in which the petitioners in these cases have interest. though initially petitions have been filed seeking several reliefs including the one for the quashing of the scheme known as 'eastern industrial area street scheme' and also seeking further entitlement of compensation as per the principles and the provisions of land acquisition act, 1894, at the hearing mr. deo stated that the petitioners do not press their prayers with regard to the validity of the industrial area street scheme, as to the other prayers regarding the compensation, the learned counsel states that the matter is being considered in the.....
Judgment:

Masodkak, J.

1. These two petitions arise out of land acquisition proceedings initiated for the purpose of Nagpur Improvement Trust relating to Khasra Nos. 72, 73, 74 and 75 of Mouza Pardi, in which the petitioners in these cases have interest. Though initially petitions have been filed seeking several reliefs including the one for the quashing of the scheme known as 'Eastern Industrial Area Street Scheme' and also seeking further entitlement of compensation as per the principles and the provisions of Land Acquisition Act, 1894, at the hearing Mr. Deo stated that the petitioners do not press their prayers with regard to the validity of the Industrial Area Street Scheme, As to the other prayers regarding the compensation, the learned counsel states that the matter is being considered in the appropriate forum under the provisions of the Nagpur Improvement Trust Act 1936 read with provisions of Land Acquisition Act and with liberty to question the eventual decision on the grounds raised in these petitions, he withdraws those prayers. However, ha restricts the petitions to the prayer with regard to payment of Court-fee which the petitioners were required to pay on the applications for making references under Section 18 of the Land Acquisition Act, react with Section 61 of the Nagpur Improvement Trust Act, 1936.

2. To appreciate the said grievance, few facts need be stated and the same are these. Before the Land Acquisition Officer petitioners in each case put in their claims with regard to compensation for the property that was being acquired. The Land Acquisition Officer made an award under Secion 11 and filed the same under Section 12(1) of the Land Acquisition Act in each case, i. e. on 28th October 1970 and 18th August 1970, the same being Annexure-VIII and Annex-ure-VII, respectively, along with these two petitions. Being dissatisfied with the said awards, on December 21, 1970 and October 2, 1970 respectively, applications under Section 18 of the Land Acquisition Act, 1894, for reference were made. The reference application in each case was required to bear the court-fee stamp as provided for by Bombay Court-Fees Act, 1959, calculating the court-fees as per Article 15 of Schedule I of the Bombay Court-fees Act. Without prejudice to the petitioners' claim that no court-fee is payable because the provision seeking levy was unconstitutional, the petitioners have paid Ra 3350/-and Rs. 1700/- respectively in these two cases as court-fee as per Article 15 of Schedule I being one-half of ad valorem fee worked out on the difference between the amount awarded by the Collector and the amount claimed by the applicants.

3. The contention is that the provision regarding the levy of this fee is ultra vires of Article 31(2) of the Constitution of India and further it being a fee, it is unreasonable on the face of it. The prayer in each of the petitions that survived and that was argued relates to seeking a declaration that the provision of Article 15 of Schedule I of the Bombay Court-fees Act, 1959 be declared ultra vires and the petitioners in each case pray for refund of the fees paid upon then- respective applications for reference.

4. Mr. Deo in support of this submission contends that it is incumbent on the State in the matter of compulsory acquisition of property for the public purposes to acquire the same only by authority of a law that provides for compensation for the property so acquired and further which specifies the principles on which the manner in which the compensation Is to be determined and given. According to the learned counsel, the constitutional guarantee under Article 31(2) of the Constitution is an obligation on the State and requiring a person to pay the court-fee for determining the compensation would be making a law which does not provide for the compensation as such. The payment of court-fees and the nature of fees taken in Court, it is argued, cannot possibly have any correlation with the services rendered by State, for here it is the State which is extracting the property and not rendering any service. Thus for the purpose of seeking determination of the compensation if the law were to require a fee as a pre-condition for determining compensation, on the face of it the complaint is, it will be unreasonable and further would mean denying the compensation itself. The submission suggests several cases where the persons who are really paupers will be disabled to get any just and equitable compensation because they are unable to bear the burden of court-fee and thus acquisition itself would be without payment of compensation as originally intended by the Constitution. Further such an accusatory process would be one unauthorised by law. Counsel argues that the nature of the order made under Section 11 of the Land Acquisition Act is nothing but an offer and it is the right given to the party in the matter of compensation either to accept or reject that offer. The words available in Sub-article (2) of Article 31 of the Constitution of India, as to the manner for determination of the compensation, should receive such a construction that would, without any impediment whatsoever including the one requiring the payment of court-fee, permit adjudication and determination of the quantum of compensation as per law. It is further urged that the Land Acquisition Act itself does not require the party dissatisfied with the offer to pay any particular fee for further adjudication; it is by the Bombay Court-fees Act an impediment is enacted and the said impediment thus being operative upon the right, secured by a law providing for the manner of determining the compensation in terms of Article 31(2), would be unconstitutional. It is further submitted that article of the Court-fees Act has no relation nor has any nexus with the cost of administration of justice, because, it is recovered at the time when the application is made and not in the Court. In fact according to the learned counsel it is an executive charge for making a reference and the principles of the cost of judicial administration and the possible nexus cannot be made applicable.

5. We have carefully considered all these submissions and it is difficult to uphold the same. Provision of Article 31(2) on which reliance is placed is in negative term conferring a right, no doubt, with regard to compensation in the matter of compulsory acquisition of property for public purposes. Sub-article (2) is satisfied once the compulsory acquisition is by the authority of law and the said law as far as the present controversy is concerned provides for the principles on which and the manner in which the compensation is to be determined and given. The provisions of Sub-article (2) undoubtedly are the part of the right to property guaranteed. By itself it purports to lay down how that right is to be governed in the matters of compulsory acquisition of property for public purposes. It enacts constitutionally a permissive legislative field that can eclipse individual rights in property in favour of public need. To satisfy basically the requirements of that provision is to find whether the taking or acquiring is by or under the authority of a competent legislation. Such law would necessarily provide by laying down the principles and the manner in which the compensation for acquired property would be determined and/or paid. Constitution clearly contemplates such a trivalent measure for acquisition of property for public purpose tO put it otherwise the requirements are simply three, viz. the acquisition must proceed under the authority of law; the said law must lay down the principles of compensation; and further it must lay down the principles for determination of compensation. The provisions of the Land Acquisition Act, 1894, read with the Nagpur Improvement Trust Act, 1936, as far as present matter is concerned fully satisfy this constitutional trivalence. Now the complaint herein is against the Court-fees Act that requires a court-fee to be paid upon an application contemplated by Section 18 of the Land Acquisition Act for' seeking a reference for adjudication for enhanced compensation. By that prescription we fail to see how the Provisions of Article 31(2) of the Constitution can be said to be violated for, we have a law laying down the principles of compensation and similarly the manner of its determination. Once these requirements are there the guarantee under the article is fully satisfied. Further probe in the scheme of the Land Acquisition Act would also indicate that complaint ig without any force.

5-A. The provisions of the Land Acquisition Act indicate that after the issue of notice to the interested parties, the Land Acquisition Officer proceeds under Section 11 to make an enquiry with regard to compensation. The law enjoins upon the officer to take into account the objections which any person has taken pursuant to the notice, firstly, to the measurements and, secondly, about the value of the land and also into the respective interests of the persons claiming compensation. The award that has to be made under Section 11 after such enquiry has to state the true area of the land and the compensation which in the opinion of the Collector has to be paid for the land and if there is a claim for apportionment, the apportionment of the said compensation. No doubt provisions of Section 11 by themselves do not indicate the principles for working out the said compensation. But it is implicit in the very purpose of the enquiry which is for all purposes the executive determination of the compensation for the acquired property. This determination undoubtedly partakes in the nature of quasi judicial enquiry to which the principles of fair play and justice are clearly applicable. Not only the Collector is bound to apply the principles enacted under Sections 23 and 24 of the Land Acquisition Act by virtue of Section 15 of the said Act, but is further enjoined in the scheme of the proceedings to behave consideration upon the evidence or the material that may be tendered by the persons interested in the property. This enquiry for the purpose of determination of the compensation is (bus governed by the principles for such determination and lays down the manner in which it has to be completed, aS a result of the enquiry award follows. No doubt the nature of the award made under Section 11 with respect to compensation for the acquired property is treated and is tantamount to an executive offer but that is because the persons interested have a further option to seek enhancement of the compensation so offered. It is styled judicially as an offer because there is a possibility of its acceptance or non-acceptance resulting in a reference at the instance of the dissatisfied party to a Civil Court for enhanced claims. For the purpose of law however the award made by the Collector is both, the result of adjudication and application of the principle for determination of compensation. The acquisitive law's purposes as contemplated by the provisions of Article 31(2) of the Constitution are thus fully satisfied once the Collector under the provisions of the Land Acquisition Act permits participation by issue of the notice and after applying the principles makes an award. The making of this 'award of compensation is thus unimpeded by any onerous conditions. Upon the claim put up before the Collector who is charged with duly to make an award the interested person is not required to pay any court-fee; nor the award so made under Section 11 if accepted by the interested person requires him to pay any court-fee, either with regard to claim set up or with regard to claim so awarded.

5-B. Now comes the stage in the scheme of the Acquisition Act itself of providing further remedy to dissatisfied person with the award of compensation. Had the law stopped at the determination made by the Collector in the shape of executive award and left the party aggrieved to follow the remedy of general law we have no doubt that the provisions of such law would have answered all the requirements contemplated and to which we have made a reference above by Article 31(2) of the Constitution. But the Legislation purports to make a self-contained and self-serving scheme. Thereunder the provisions of Section 18 of the Land Acquisition Act permit of a making of an application to the Collector for the purpose of reference to the Court by which the person interested and not satisfied with the award can seek enhancement of the compensation. It may be mentioned that provisions of Chapter VI of the Nagpur Improvement Trust Act which are relevant enable the Trust to acquire the land under the provisions of the Land Acquisition Act as are amended by the provisions of Nagpur Improvement Trust Act and for performing the functions of the Court in reference to the acquisition of land for the Trust a Tribunal is required to be constituted in accordance with Section 62 of the Trust Act. By virtue of Section 61 of that Act, the Tribunal so constituted is deemed to be the Court and the President of the Tribunal to be the Judge. Thus by virtue of Section 18 of the Land Acquisition Act the dissatisfied interested person is enabled to approach this Tribunal which for all purposes is a Court if claim is set up for enhanced compensation. Under the provisions of the Land Acquisition Act such a reference would have been to the Court as defined in Section 3(d). Further scheme of Section 18 indicates that an application has to be filed with the Collector which if it is otherwise tenable takes the shape of a reference to Civil Court. But the disputes so raised for the purpose of enhanced compensation have to be determined or adjudicated upon by the Court or the Tribunal which is deemed to be the Court Under the relevant Act. The nature of the proceedings initiated upon an application for reference by the party conce'rned is clearly one of civil claim with regard to the entitlement of the compensation in place of the compensation offered under an award made under Section 11. As far as applicable to the hearing of the reference before the Civil Court Section 53 of the Land Acquisition Act, 1894 makes the Code of Civil Procedure applicable. Under the Trust Act only Section 54 of the Land Acquisition Act has been excepted but the provisions of Section 53 would still be applicable to the proceedings in reference before the Trust Tribunal. Effect of exclusion of Section 54 by the Trust Act is merely taking away the remedy of further appeal which would be available under the Code of Civil Procedure.

6. This self-serving scheme of the statute primarily shows that once there is executive determination of the compensation the interested person if dissatisfied is being provided with a civil remedy and the mode and manner of taking that remedy in the Court is regulated. For all intents and purposes along with the nature and constitution of the remedy,' it is clear that the person interested and dissatisfied and seeking a reference is placed in the place of a plaintiff claiming higher compensation for the property acquired than the one awarded under Section 11 of the Land Acquisition Act. The civil claim so set up though not a suit but is clearly akin to it and is governed by the Civil Procedure Code. Party seeking to invoke the process of civil justice which is depart-mentally available under the structure of the law in' the hierarchy of the Court is bound by other laws and would clearly be subject to its terms like any other suitor in civil cases. Only because the laws that govern the initiation or institution of claims and its investigation by the Civil Court create a modality and require the party to incur such an expenditure for that purpose, it cannot be said that the initial right to get the compensation is in any manner being impeded. If we were to stretch the logic of Impeding the fundamental rights in this manner, then even a party required to call witnesses and pay for them would complaint that it is onerous. The position of the party and the purpose of the proceedings clearly dominate the necessity in such matters to put the party and the proceedings to the regulation of other laws and only because those laws impose a liability because the justice is sought from the Civil Court to pay the court-fee on the claim so set up, the right to compensation cannot be said to have been effected in any manner.

7. This would be evidenced by further scrutiny of certain provisions of the Land Acquisition Act.

8. As we stated above, the manner and procedure for the purpose of initiating proceedings in Civil Court is laid down by Section 18 of the Land Acquisition Act. The initiation has to be by a written application to the Collector and the party is required to state the grounds on which the objections to the award or its amendment are made. Limitation is prescribed within which the application has to be tendered. Orders made by the Collector are subject to the revisional jurisdiction under Section 115 -the Code of Civil Procedure by the High Court. If everything is appropriately complied with, the Collector is required by law to make a reference. Collector is required further to make a statement with regard to the matters of objections and Section 19(1)(d) relevantly casts an obligation to disclose the grounds on the basis of which the Collector determined the compensation of the acquired property. Section 20 directs that upon reference the Court would start the hearing of the proceedings by causing notices to be served on the persons interested and the Collector. These three Sections 18, 19 and 20 together indicate that the application for reference is in substance the Civil claim in the matter of higher compensation which has to set out the grounds of objection to sustain that claim and the Collector has to indicate the grounds on which the compen-sation has already been determined. That indicates that these are the basic pleadings and with these pleadings the matter is sent in the shape of the reference for adjudication by the Court which involves as usual the incidental services of the adjudicating forum established by the State in the matters of dispensation of civil justice.

9. Now turning to the provisions of the Bombay Court-Fees Act, 1959 which seek to charge fee mainly in the matters of involving the dispensation of justice in courts, at the threshold it must be observed that for the purpose of reference, by Article 15 of Schedule I of the Bombay Court-fees Act, 1959, the fee is charged upon the application by which adjudication in the Civil Court is sought. The incident or the cause for collection of court-fees thus is clearly the application of the person who 6ets up civil claim for higher compensation. Competency to charge such fees and make law for its levy and collection cannot be doubted under the constitutional scheme nor was so raised before us. Like any other civil claim required to be initiated by means of filing a plaint or an application or memorandum in writing made to the Court, application for the purpose of reference to the Court under Section 18 of the Land Acquisition Act provides an appropriate incident seeking to levy the fee, for, eventually what ensues is the adjudication by the Court in its civil jurisdiction of a civil claim. It is clear that though the court-fee has to be paid upon the application made to the Collector in pith and substance it is the fee that is paid in-Court, for, as we indicated above, Collector would have no option if the conditions of the statute are satisfied but to forward the reference for the adjudication of the Court. The fee thus charged under Article 15, of Schedule I, in our view is the one which ig required to be paid in court and is not a fee collected or paid upon an application made to the Collector. Because proceedings with regard to civil claim for the enhanced compensation are initiated by an application to the Collector, this position that it is a fee in law paid in Court is not affected. Application is an incidence upon which the court-fee can be levied and the Collector being the authority entertaining such applications though would collect the same, yet it is a fee paid in Court.

10. About the character of such fees In the legislative field it is ample to refer to the authoritative pronouncement of the Supreme Court in the case of Secretary, Government of Madras, Home Department v. Zenith Lamps & Electricals Ltd. : [1973]2SCR973 . The ratio of this judgment reinforces the legislative competence and clearly brings out that the nexus for the levy and collection of the court-fee is provided by the very administration of justice in and under the State. The Court in that case observed in paragraph 31 as follows:

'But even if the meaning is the same, what is 'fees' in a particular case depends on the subject-matter in relation to which fees are imposed. In this case we are concerned with the administration of civil justice in a State. The fees must have relation to the administration of civil justice. While levying fees the appropriate legislature is competent to take into account all relevant factors, the value of the subject-matter of the dispute the various steps necessary in the prosecution of a suit or matter, the entire cost of the upkeep of courts and officers ad ministering civil justice, the vexatious nature of a certain type of litigation and other relevant matters.'

(Underlining added).

These observations clearly indicate that once the relation of the claim to the administration of civil justice is established, its levy is competently made and the appropriate legislature seeks to re-cover the same by keeping in view several relevant factors. The levy of the fees under Article 15 of Schedule I in issue is thus with competence and has clear relation to the administration of civil justice. As we have indicated above, the reference under Section 18 entails involvement of the administration of civil justice drawing upon the services of the judicial hierarchy of courts at the instance of the party dissatisfied with an executive award or determination of compensation under Section 11 of the Land Acquisition Act. The charging principle underlying the provisions of the Court-Fees Act is clearly connected to the civil administration of justice seeking recovery of the court-fee from the party which intends to initiate the proceedings and to set the .wheels of justice in motion. A person interested in the property acquired after the statutory adjudication of the compensation under Section 11 is not a different class than any other civil suitor seeking to establish in Civil Court a claim against a public or State authority. There is no such guarantee in Article 31(2) of the Constitution that such a suitor only because his property is subjected to acquisition for public purpose should be differently treated even for the purpose of adjudication of his civil claim in the matter of compensation. Conceivably it cannot be so. The right and assurance of the compensation according to law for the acquired property which is bona fide adjudicated by the machinery provided by such law is the maximum guarantee of Article 31 (2) of the Constitution. The matters of evaluation of property by a person interested and his desire to get the same adjudicated, need not be mixed and confused with the right guaranteed by the Constitution. The interested person like any other citizen is entitled to put his valuation in the matter of compensation including his own fanciful claims. Like any other suitor after the basic determination, which taw presumes will be fair and bona fide, such a person is permitted to seek adjudication of his claim from the competent Civil Court and for that purpose is required by the Court-Fees Act to bear the burden of the fees which have relation to the rendering of the services in the administration of justice.

11. We thus fail to see how such a levy which is competently enacted can be said to affect the right conferred by Article 31(2) of the Constitution of India. About the reasonableness, the levy of fee tinder Article 15 of the Schedule I of the Bombay Court-Fees Act on the face of it shows a rationale in that it charges one-half of ad valorem fee on the difference, if any, between the amount awarded by the Collector and the amount claimed by the applicant according to the scale prescribed under Article 1 of Schedule I subject to a minimum fee of fifteen rupees. Had the matter been of a civil suit simpliciter, the prescription would have been on the ad valorem basis; but the legislative reasonableness is explicit in making the charge half of the said fee; so also it is only the difference between the compensation determined by the Collector and the claim of the person interested that is subjected to this charge. Thus the levy is clearly circumscribed by the objective factors reasonably worked out and cannot in any manner be said to be arbitrary imposition. There is no ground to think that any irrational element has been introduced in the matter of the rate of fee prescribed by Article 15. Once we grant the principle that the State is entitled to recover reasonable fee having correlation to the services involved and rendered by the administration of civil justice, even if compared with the other fees which are competently collected under the Court-Fees Act, the levy of this fee shows care and circumspection. Under Article 31(2) of the Constitution what is material to find is the law authorising compulsory acquisition of the property for public purposes that lays down the manner and determination of compensation along with the principles of such determination and not the matters of its reasonableness. Even If that can be said to be in issue because of Article 19 of the Constitution, we are satisfied that on the face of it by the very nature of it the fee collected under Article 15 of the Bombay Court-Fees Act answers the reasonableness.

12. As is usual in the field of reasonableness, reference was made to hypothetical cases wherein question as to a party who is truly pauper and as such unable to seek a reference and, therefore, losing the remedy provided by the law validly made under Article 31(2) of the Constitution was raised. But, in our view, such cases and such illustrations are not decisive. The guarantee of Article 31(2) is to the extent of permitting acquisition of private property for public purposes by or under the authority of law that lays down the manner and principle of determination of compensation. That does not further guarantee that this manner of determination should always and in all circumstances be free in the sense the services required for adjudication should be made available without charge of any fee. Having indicated the manner the law made under Article 31(2) may itself indicate the mode and manner of determination of compensation and other matters such as iniliation, conditions of initiation and its adjudication being left to the modality of other Acts. Question of detriment does not arise, for, here there is first an executive determination in the shape of award of the compensation free of any charge and it is only when the party sets up a higher claim of its own over and above that compensation, such a party is asked to pay fee in Court by a modality of making an application for reference. It is not necessary in these petitions to say whether the provisions of Order XXXIII Civil Procedure Code dealing with the claims of pauper suitors would be attracted or not. But it is likely that upon the view indicated above, in that the fees collected upon the application are fees paid in Court, the parties truly without any funds to pay the same may be entitled to invoke the provisions with regard to pauperism available in the Code of Civil Procedure. For the purpose of the present petitions suffice it to observe that the petitioners before us are not paupers and in fact have paid the court-fee and have raised a challenge that they are not liable to pay that court-fee because of Article 31(2) of the Constitution.

13. Upon the view we have taken as to the construction of the remedy made available and resultant necessity involving the judicial services, the levy of the fee is clearly related and competently made. Further there is obvious possibility involved in all civil litigations that the fees initially paid will be directed to be borne upon success by the opponent as it will form part of the costs that usually follow the success in a civil cause. The reasonableness of the levy and its possible return in the shape of costs, all indicate that petitioner's remedy is not in any manner put under onerous statutory conditions.

14. In view of all this, we reject the submissions advanced in support of the petition and adjudge that upon the debate raised before us, Article 15 of Schedule I of the Bombay Court-Fees Act, 1959, seeking levy of the one-half ad valorem court-fee in the matters of reference under Section 18 of the Land Acquisition Act, 1894, is not in any manner unconstitutional nor can be treated so under Article 31(2) of the Constitution ofj India. We have disposed Of the question' on the basis and assumption that Article 31(2) is applicable- to the provisions of the Land Acquisition Act, 1894, as the levy of court-fee collected was under the Bombay Court-Fees Act, 1959. In this we make it clear that we are not applying the saving indicated by Article 31(5) of the Constitution of India.

15. Rule would stand discharged in both these petitions. However, we make no orders as to costs.

16. Rule discharged.


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