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Gurudatta Housing Society Vs. Maruti Bali Kokate - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberF.A. No. 597 of 1979
Judge
Reported in(1980)82BOMLR397; 1980MhLJ619
AppellantGurudatta Housing Society
RespondentMaruti Bali Kokate
DispositionAppeal dismissed
Excerpt:
.....in terms of clause (f) of article 23 of schedule ii of the bombay court-fees act, 1959. the court-fees on appeal directed against a judgment of a civil court deciding as to who between the claimants was owner of land acquired is, therefore, payable under article 23(f) of schedule ii of the bombay court-fees act, 1959.;sathappa chettiar v. ramanathan chettiar [1958] a.i.r. s.c. 245 referred to.;h. martin de silva v. martin de silva [1957] a.i.r. raj. 275, criticised. - - 19 of 1921 and how the other proceedings like any trial of dispute on title, end in a decree and appealable as such under section 96 of the code of civil procedure and how the same is not the part of the award. the concluding words of this sub-section clearly pin-point in the conception, that the words 'relating to..........it is necessary to examine if section 7(1) can have any application to the computation of court-fees on appeal against judgment on reference of dispute as to title under the land acquisition act. we may make it clear that reference of dispute as to apportionment arising out of dispute to title stands on the same footing.4. section 1(1) of the court-fees act reads as follows:(1) 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.5. this provision can have no application unless the impugned order under appeal relates 'to.....
Judgment:

V.S. Deshpande, J.

1. This First Appeal was dismissed summarily at the admission stage on August 10, 1979. The appeal is directed against the judgment of the Civil Judge, Senior Division, Osmanabad, in Land Acquisition Reference No. 19 of 1975 under Section 30 of the Land Acquisition Act, hereinafter referred to as 'the Act'. The reference was necessitated due to the inability of the Land Acquisition Officer to decide as to who, between the claimants, was the owner of the land acquired. The learned Judge rejected the appellant's claim and upheld Maruti Kokate's claim to be the owner of the land and as such entitled to receive the compensation. The appellant valued his claim in appeal at Rs. 300 and paid Court-fees thereon accordingly presumably under Clause (1) of Article 23 of Schedule II of the Bombay Court-fees Act, 1959, hereinafter referred to as 'the Court-fees Act'. The office claims ad valorem court-fees under Article 1 of Schedule I read with Section 1(1) of the Court-fees Act on the amount of compensation denied to him under the impugned judgment, as if it were an appeal under Section 54 of the Act. The appeal is placed for orders on this office objection.

2. Mr. Solshe, the learned advocate appearing for the appellant, contends that the dispute in such reference proceedings is analogous to declaratory prayers unaccompanied by any consequential relief. Nature of proceedings remains the same in appeal. The subject-matter therein being incapable of estimate in money value, court-fee is payable on the artificial valuation of Rs. 300 as under Clause (1) of Article 23 of Schedule II. He relies on the judgment of the Rajasthan High Court in the case of H. Martin De Silva v. Martin De Silva .

3. Mrs. Shenoy, the learned Assistant Government Pleader, on the other hand, contends that the appellant is claiming the amount of compensation for himself to the exclusion of the respondent Maruti, to whom the same is payable under the impugned judgment. His appeal is virtually analogous to the suit for recovery of money from Maruti. According to her, the appellant must pay ad valoram court-fee on the amount so claimed under Article 1 Schedule I read with Section 7(1) of the Court-fees Act. She relies on the judgment of the Calcutta High Court in the case of In re Ananda Lal : AIR1932Cal346 , and recent judgments of the Full Benches of the Kerala High Court in the case of Balkrishna Nambiyar v. K. Madhavan : AIR1979Ker40 and of the Punjab High Court in Daryodh Singh v. Union of India I.L R [1966] Punj 481, She also relies on the Division Bench judgments of the Karnatak High Court in the case of Ghouse Saheb v. Sharifa Bi : AIR1977Ker181 , and of the Madras High Court in the case of Loomchand v. Revenue Divisional Officer, Trichy : AIR1975Mad177 and the cases relied on therein. It is necessary to examine if Section 7(1) can have any application to the computation of Court-fees on appeal against judgment on reference of dispute as to title under the Land Acquisition Act. We may make it clear that reference of dispute as to apportionment arising out of dispute to title stands on the same footing.

4. Section 1(1) of the Court-fees Act reads as follows:

(1) 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.

5. This provision can have no application unless the impugned order under appeal relates 'to compensation' and the claim in appeal involves some 'difference' between 'the amount awarded' and 'the amount claimed'.

6. Under Section 11 of the Land Acquisition Act, the Collector has to record findings in his award as to (a) the area of the land acquired, (b) market value thereof and (c) the person or persons to whom the said compensation is liable to be paid. The aggrieved claimant can get his dispute as to quantum of compensation referred to the Court under Section 18 and decision thereon is appealable to the High Court under Section 54 of the Act. Section 26 of the Act is amended by Act 19 of 1921 to deem the award of the Court as if it were a decree and Section 54 is amended thereunder to make judgement of the High Court appealable to Privy Council (and now to Supreme Court under Section 110 of the Code of Civil Procedure). The decision on such reference is likened to arbitration proceedings. Undisputedly the decision of the Court at every such stage relates to compensation and appeal against it does involve difference in the amount claimed and awarded to attract Section 7(1) of the Court-fees Act,

7. In the event of there being a dispute as to ownership of the land acquired or a portion thereof and consequential apportionment of the compensation between them, the Land Acquisition Officer has the choice to decide it himself and refer the dispute under Section 18 to the Civil Court on an application to that effect by any claimant and deposit the compensation amount in the said Court or refer such dispute of his own to the said Court presumably when the question of title does not admit of easy solution,. In either of these eventualities, the Collector taking possession of the land does not dispute his liability to pay compensation which is equivalent in money of the land so acquired. The surviving dispute referred to the Court, when confined to the title to receive the compensation so offered, is in essence of a declaratory nature. The dispute does not admit of any consequential relief as the Collector either deposits the amount in the Court or declares his standing offer to pay to any one or more persons found entitled by the Court on trial of the dispute referred. The character of this dispute differs in substance from the one in which one of the disputants happens to be in possession of the land or its equivalent and disputes his liability to pay. The payer the Land Acquisition Officer in such cases does not dispute his liability. The liability of the Collector to pay the quantum of compensation, not being the subject-matter of such reference, the dispute in reference cannot be said to relate 'to compensation'. That consequentially, the Court or the Collector has to pay the compensation to the party succeeding, cannot make the dispute in reference for or relating to compensation. The distinction is, no doubt, subtle but still of vital importance to the point under consideration.

8. Our this view finds support in the judgment of the Privy Council in the case of T.B. Ramachandra v. A.N.S. Ramchandra : (1922)24BOMLR963 . The Rajasthan High Court also relied on this judgment. Surprisingly enough, other High Courts, in the judgments on which Mrs. Shenoy relies, dismissed it out-right as being irrelevant. A little detailed reference is, therefore, necessary. The judgment pin points the dual nature of proceedings under the Act on reference to the Civil Court on disputes as to (I) quantum of compensation, and (2) the title to the! land acquired or any portion thereof, and indicates how the one is in the nature of arbitration proceedings and ends in the award and as such appealable under Section 54 to the High Court as it stood prior to amendment Act No. 19 of 1921 and how the other proceedings like any trial of dispute on title, end in a decree and appealable as such under Section 96 of the Code of Civil Procedure and how the same is not the part of the award. All this discussion had become necessary to consider whether a wrong decision of the High Court on reference of dispute on title in earlier Land Acquisition proceedings, declaring a particular property acquired thereunder to be widow's estate, could operate res judicata under general principles, if not under Section 11 of the Code of Civil Procedure, in a subsequent suit between the legal representatives of the same parties in regard to the same property. Its earlier decision in Rangoon Botatoung Co. Ltd. v. Collector, Rangoon : (1912)14BOMLR833 , dismissing the appeal against the judgment of the High Court on the quantum of compensation as being merely an award in arbitration proceedings and not a decree and hence not appealable was relied on to urge that earlier judgment could not so operate as res judicata. The distinction between the proceedings on references on the disputes as to (1) the compensation, and (2) the title came to be emphasised to overrule the objections and hold that reference on dispute as to title did not relate to compensation and end in a decree and did operate as res judicata.

9. Since the Privy Council decision., Judgments of the Court on reference on dispute as to quantum of compensation are held to be appealable as award under Section 54, but decisions on reference as to title are held to be appealable as decree of the Court under Section 96 of the Code of Civil Procedure, the Code of Civil Procedure having been made applicable to proceedings on reference under Section 53 of the Act. Reference to the judgment of this Court in Abdul Satar v. Advocate-General A I R [1933] Bom 87 (1932) 35 BomLR 18, will be enough. This dual nature of proceedings is also adverted to by the Supreme Court in the case of Grant v. State of Bihar : [1965]3SCR576 .

10. This judgment thus fortifies our view that judgment of the Court on reference of dispute as to title under Section 18 or Section 30 is not 'related to compensation'. Section 1(1) expressly deals with computation of court-fees on appeals in the matter of compensation for the property acquired. The words 'relating to compensation' appearing there in this context shall have to be construed accordingly.

11. The Court-fees Act after all is a fiscal statute, the provisions of which are liable to be construed strictly. The subtle distinction between dispute as to title without any dispute with the payer thereof and dispute as to quantum of compensation between the claimant and payer cannot be ignored, when it makes difference to the liability to pay the court-fees.

12. Secondly and equally importantly, in an appeal against the judgment of the Civil Court on reference under Section 30, of the Land Acquisition Act, no question of claiming any more amount in appeal than is awarded under the impugned judgment also can arise. The question of claim in appeal, therefore, involving any 'difference' between 'the amount awarded' and 'the amount claimed' also cannot arise in such appeals nor the question of computing the Court-fees on appeal by reference to any such difference. The concluding words of this sub-section clearly pin-point in the conception, that the words 'relating to compensation' are intended to convey. On the face of it, therefore Section 7(1) of the Court-fees Act can have no application whatsoever to the computation of Court-fees ort a memorandum of appeal in such cases.

13. Judgments relied on by Mrs. Shenoy, no doubt, support her contention. Coming first to the judgment in re Ananda Lal's case (supra), which is the sheet anchor of judgments taking the different view, Rankin, CJ. sitting singly had to consider as to what amount of Court-fees was payable on appeals from the awards of the Calcutta Improvement Tribunal. Claim of the Zamindars to the share in the compensation for the land acquired was rejected by the Tribunal finding the property to be revenue free and Zamindars having no interest therein. Whether the matter arose on any reference to the Calcutta Improvement Tribunal on the dispute as to title under any section analogous to Section 18 or Section 30 of the Land Acquisition Act is neither clear, nor relevant. This much is clear that the dispute raised before the Tribunal related to the title of the Zamindars in the land and not to the quantum of compensation as in the present case. Application of Section 8 of the (Central) Court-fees Act and Article 1 of sen. I thereof, which is word to word analogous to Section 7(1) and Article 1 of Schedule I under consideration, the Court-fees payable on appeal was resisted by the appellants on four grounds. First contention was that amended Section 26 of the Act not being applicable to the award of the said Tribunal its judgment was neither a decree nor could claim to have the force of decree and the appeal therefrom was liable to the fixed Court-fee under Article 11 of Schedule II. The learned Chief Justice held that Section 8 covered all 'orders' relating to compensation, whether the same amount to decree or not. Second contention was that the chapter and the part in which Section 8 is placed did not apply to appeals filed in the High Court. This contention was overruled by reference to the long standing practice in the said Court. We do not propose to say anything as to these two findings of the learned Chief Justice.

14. Third contention was that the appeal did not involve any comparison between the difference in the amount claimed and awarded. The Court noticed this but overruled it merely by saying that the appellant claims the compensation money and on the wording of Section 8, the article involving ad valorem Court-fee alone could be applicable. On the assumption of the application of Article 1, Schedule I, Section 8 is found to be beneficial to the citizen, restricting as it does the liability to Court-fee on the amount claimed and not on the value of the pro-party. We find it difficult to appreciate how this explains away the point raised. It at best may justify application of the method of computation indicated in Section 8 to cases covered by Article 1 of Schedule I. If, however, does not explain away how Section 8 can apply to an appeal involving dispute as to title involving no such difference in amount claimed and awarded. Fourth contention was that the claim in appeal did not relate to the compensation. The fact that ultimately decision on dispute as to title enables the succeeding party to get the compensation was relied on to overrule this contention.

15. This judgment does not deal with several points discussed by us earlier. Judgment of the Privy Council discussed earlier also does not seem to have been brought to the notice of the learned Chief Justice. With respect, we are unable to agree with this view.

16. We agree with the view of the Rajasthan High Court in the above cited case in differing from this view and also holding that another learned Judge of the same High Court in the case of Rash Behari v. Gosto Behari : AIR1935Cal243 , took a different view as to the liability of Court-fee in appeal against the award of Improvement Tribunal, though the judgment in Ananda LaPs case was not brought to his notice. The dispute was as to the title between purchaser Goswami from a widow having limited interest in the property acquired and the reversioner of her husband Sanyal. There was no dispute as to quantum of compensation. Tribunal upheld Goswami's claim. Appellant Sanyal's contention that only fixed court-fees was payable was accepted by Castello, J. holding that Section 8 did not apply. It is true that the decision on the title depended on whether the sale was justified by the legal necessity or not. We are unable to see how these reasons for the decision could make any difference to the nature of appeal and application of Section 8 of the Court-fees Act.

17. Coming next to the Full Bench judgment of Punjab and Kerala High Courts, the learned Judges have mainly relied on the dicta of Rankin, C.J. in Ananda Lal's case. With respect, we are unable to agree therewith for the reasons already discussed. The dicta of the Privy Council in T.B. Ramchandra's case (supra) is found by the learned Judges to be irrelevant, because it merely dealt with the question of res judicata and not with any provisions of the Court-fees Act. With utmost respect, this ratio of this case cannot be ignored on either of these ground's. We have already discussed how the issue of res judicata turned on (1) whether reference to proceedings for compensation terminating in award were different from the reference to proceedings on title terminating in decree, and (2) how the decree, unlike the award, in the trial of such dispute, could operate as res judicata Section 1(1) of the Court-fees Act and corresponding Section 8 of the Central Court-fees Act is attracted only when there is an appeal in relation 'to compensation' for acquisition of property under any Act including the Land Acquisition Act. This section or any of the provision of the Court-fees Act does not furnish any other 'context' to make the ratio of this case irrelevant. We are thus unable to agree with the learned Judges taking different view and ignoring the ratio of Privy Council on the grounds suggested.

18. Coming to the question of the application of Article 1 of Schedule I, it shall have to be borne in mind that Schedule I deals with different kinds of cases attracting ad valorem Court-fees, while Schedule II enumerates the cases in which fixed Court-fee is payable. Any question of application of Article 1 of Schedule I cannot arise unless the mode of computation of the value of the subject-matter in dispute is traced. No other Article of Schedule I also was relied on. Mode of computation contemplated under Section 7(1) of the Court-fees Act is already rejected by us, holding that the dispute as to title cannot amount to disputes as to compensation, the amount of which cannot reflect the value of the dispute. We have already held that the dispute in reference on the question of title under the Act is of a declaratory nature in which no consequential relief is required to be claimed, as the compensation amount goes to that person automatically who is found so entitled under the decision in reference proceedings. The situation is comparable to the subject matters in disputes covered by Section 7(4)(c)(iii) or Article 17(iii) of Schedule II of the Indian Court-fees Act. Under the Scheme of Section 7(4)(c) of the Indian Court-fees Act, the plaintiff is at liberty to put his own valuation for the purposes of the relief claimed thereunder. As held by the Supreme Court in the case of Sathappa Chettiar v. Ramanathan Chettiar : [1958]1SCR1021 .

The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness.

19. This is truer still of the subject-matter falling under Article 17(iii) of Schedule II of the Court-fees Act involving declaratory prayers without consequential reliefs. But the Bombay Court-fees Act does not contain any analogous provisions. The declaratory relief thereunder are now classified into several categories, under Section 6(iv) to 6(j) of the Act. None of these clauses can have any application to the dispute of the present nature, not arising out of any suit. The mode adopted by Rajasthan High Court in this behalf cannot be followed.

20. Mr. Solshe relies on Clause (1) of Article 23 of Schedule II. The said provision reads as follows:

---------------------------------------------------------------------------------Number ... ... ... Proper fee1. 2. 3.---------------------------------------------------------------------------------23. Plaint, petition or application Ad valorem fee payable, as if (including memo- the amount of value of the randum of appeal) which subject-matter was three hun-is capable of being treat- dred rupees.ed as a suit.(f) in or to any Civil Court not otherwise provided for and the subject-matter of which is not capable of being estimated in money value.----------------------------------------------------------------------------------

21. It must be conceded that concluding words of column No. 1 of this article do not make a happy reading, Mrs. Shenoy is right in contending that the question of any appeal being treated as a suit can never arise. The words 'appeal' and 'suit' can never mean the same thing. The words '(including memorandum of appeal)' are indicated advisedly in the bracket. This appears to have been intended to show that the words 'capable of being treated as suit' are applicable only to the plaint, petition or application, and not to the memorandum of appeal. It is difficult to see any other significance of the bracket.

22. Secondly, Clause (a) to (e) have no relevance. But Clause (1) can apply where the subject-matter of the appeal is not capable of being estimated in money value. In this case, however, the declaratory dispute on the question of title under Section 18 and 30 of the Act can be held to be incapable of being estimated in money value in terms of Clause (1) of Article 23 of Schedule II of the Act under the authority of the above observations of the Supreme Court. No other article of Schedule II also was relied on by Mrs Shenoy. It is true that Clause (1) also in the very nature of things, is a residuary clause being applicable if 'not otherwise provided for'. But Mrs Shenoy could not draw our attention to any other pro* vision prescribing the mode of valuation. Column 3 of Article 23(f) of Schedule II indicates the mode of valuation of such appeal for computing the Court-fees. We have, therefore, no hesitation in upholding the contention of Mr. Solshe that Court-fee on appeal is payable under Article 23(f) of Schedule II of the Court-fees Act.

23. In this view of the matter, the objection raised by the office does not appear to us to be well founded. We accordingly reject the same and hold that Court-fees paid by the appellant is sufficient.


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