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M. Dodla Malliah and ors. Vs. the State of Andhra Pradesh Through Asst. Collector and Land Acquisition Officer, Warangal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberS.R. Appeal No. 45213 of 1962
Judge
Reported inAIR1964AP216
ActsLand Acquisition Act, 1894 - Sections 11, 18, 26, 26(2) and 54; Andhra Court Fees and Suits Valuation Act, 1956 - Sections 48 and 49; Court Fees Act, 1870 - Sections 8; Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 2(9) and 2(14)
AppellantM. Dodla Malliah and ors.
RespondentThe State of Andhra Pradesh Through Asst. Collector and Land Acquisition Officer, Warangal
Appellant AdvocateT. Veerabhadrayya, ;M.S. Raja Lingam and ;K. Narayana Raju, Advs. and ;Ch. Sankara Sastry
Respondent AdvocateM.V. Nagaramaiah, Adv. for ;2nd Govt. Pleader
Excerpt:
property - nature of award - sections 26 and 54 of land acquisition act, 1894, sections 48 and 49 of andhra court fees and suits valuation act, 1956 and sub-sections 2, 9 and 14 of section 2 of code of civil procedure, 1908 - whether award given by land acquisition officer regarding payment of court-fees under section 26 is 'order' falling within section 48 - 'order' under section 48 has to be widely construed to include compensatory awards - section 48 includes orders which are compensatory in nature and which are not decrees but appealable under section 54 - held, it is an order within meaning of section 48 of andhra court fees and suits valuation act. - - according to the learned counsel, the act requires payment of court-fee only in cases of appeals against decree as such, but.....venkatesam, j.1. this reference was made to a bench by one of us (venkatesam, j.) on account of the novel contention put forward regarding the question of court-fee, and the important principle it involves.2. the facts shortly are these. toe assistant collector and land acquisition officer, warangal, made a reference to the district judge, warangal, under section 15 of the hyderabad land acquisition act (which corresponds to section 19 of the land acquisition act, no. 1 of 1894 as the claimants were dissatisfied with the amount of compensation awarded. it was registered as original petition no. 36 of 1960. it may be noted that though the reference was made under the hyderabad land' acquisition act, during the pendency of the petition that act was repealed, and act 1 of 1894 was made.....
Judgment:

Venkatesam, J.

1. This reference was made to a Bench by one of us (Venkatesam, J.) on account of the novel contention put forward regarding the question of Court-fee, and the important principle it involves.

2. The facts shortly are these. Toe Assistant Collector and Land Acquisition Officer, Warangal, made a reference to the District Judge, Warangal, under Section 15 of the Hyderabad Land Acquisition Act (which corresponds to Section 19 of the Land Acquisition Act, No. 1 of 1894 as the claimants were dissatisfied with the amount of compensation awarded. It was registered as Original Petition No. 36 of 1960. It may be noted that though the reference was made under the Hyderabad Land' Acquisition Act, during the pendency of the petition that Act was repealed, and Act 1 of 1894 was made applicable to the erstwhile Telangana area. The district Judge confirmed the award of the Land-Acquisition Officer. Aggrieved by that decision, the claimants preferred the appeal to this Court for enhanced compensation.

3. In the appeal memorandum, the paragraph-dealing with the valuation of the appeal, reads-thus:

'The total amount due at the rate of twelve annas per yard to which the appellants beg to confine their claim in this appeal though they are entitled to higher rate is .......Rs. 2,68,257-00'

Amount allowed as compensation is ' 88,630-00

The difference claimed as compensation is ... ... .. ' 1.79,577.00'

Appellants pray that the said excess may be awarded to them with interest thereon at 6% as statutorily provided in .5. 23 of the Act and costs, and' 15% solatium thereon as usual.

Note: It is submitted that no court fee is payable as under Section 49 of the Andhra Court Fees Act/court fee payable in appeal is the Same as in the court of the first instance and no court fee is payable in the Court of the first instance.'

Though it was noted that Court-fee was not payable, a Court-fee label of Rs. 2/- was, however, affixed to the Memorandum of appeal.

4. The office of this court required the appellants to pay ad valorem Court-fee under Section 48 of the Andhra Court-Fees and Suits Valuation Act. The appellants contended that Court-fee is payable not under Section 48, but under Section 49 of the said. Act, which provides for payment of Court-feepaid in the lower Court, and that consequently Court-fee of Rs. 2/- has been paid.

5. The contention of Sri Shankar Sastry, the learned Counsel for the appellants, may be stated thus: The Andhra Court-Fees and Suits Valuation Act. VII of 1956, (hereinafter referred to as 'the Act') governs the case. According to Section 48 of the Act, Court-fee is, no doubt, payable on the dif-erence between the amount awarded and the amount claimed by the appellants, but it applies only to appeals against an order relating to compensation under any Act. Section 54 of the Land Acquisition Act provides an appeal to the High Court from the award or from any part of the award of the Court, which is now deemed to be a decree by reason of 'Section 26(2), added by Amendment Act XIX of 1921, In other words, the contention is that the 'order' in Section 48 refers not to an award of the Land Acquisition Court which is now deemed to be a decree under Section 26(2), but any order relating to compensation. Therefore, Section 49 of the Act governs the case, and according to it the fee payable on the appeal memo shall be the same as that payable in the court of first instance which in the present case is nil.

According to the learned counsel, the Act requires payment of Court-fee only in cases of appeals against decree as such, but not in the case of appeals against adjudications deemed to be decrees, like the awards passed by a Land Acquisition Court. He concedes that a Land Acquisition Court is a Civil Court, but even so its adjudication as to compensation is only an award amounting to a decree, but not an order. It is further contendedthat Section 3(4) of the Act for the first time enacted that the expression used and not defined in that Act or the Madras General Clauses Act, but defined in the Code of Civil Procedure, shall have the meaning assigned to them in that Code. Under the Civil Procedure Code, there is a clear distinction between a decree and an order, and even though an award under Section 26(2) of the Land Acquisition Act is deemed to be a decree, it is not an order within the meaning of the Civil Procedure Code, and therefore, cannot be an order under Section 48 of the Act.

6. It was next contended that the Act has expressly provided for the Court-fee payable on awards in certain cases. Schedule II, Article 4, of the Act deals with the memorandum of appeal under Section 39 of the Arbitration Act, 1940, where the appeal is from an order of the District Munsif s Court, or from an order of a superior Court, and fixed Court-fee has to be paid depending on the value for jurisdiction. Article ll(m) deals with an application to set aside an award under the Arbitration Act, and provides for a fixed Court-fee depending on the value of the subject-matter of the award, and whether the' application is presented to the District Munsifs Court, or to a Subordinate Judge's Court, a District Court, or High Court. Article ll(n) deals with applications under Section 14 or Section 20 of the Arbitration Act for a direction for filing an award or for an order for filing an agreement or an application for enforcing awards. No express provision has been made in Schedule II of the Act for an appeal against an award under Section 26 or the Land Acquisition Act. Hence, the general provision, i.e., Section 49 of the Court-Fees Act, alone can apply.

7. The point arising for consideration, therefore, is, whether the award under Section 26 of the Land Acquisition Act falls within the connotation of the word 'order' in Section 48 of the Andhra Court-Fees Act, or not.

8. Before referring to the cases having a bearing on this question, it is as well that the relevant statutory provisions are noticed. The provisions of the Andhra Court Fees Act may first be considered. Section 19, which occurs in Chapter IV of the Act, enacts as follows:

'The fee payable under this Act shall be computed in accordance with the provisions of this Chapter, Chapter VI, Chapter V1I1 and Schedules 1 and II.'

Section 20 of the Act reads as follows:

'In a suit for money (including & suit for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically), fee shall be computed on the amount claimed.'

Section 48 enacts:

'The 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 property for public purposes shall be computed on the difference between the amount awarded and the amount claimed by the appellant.'

Section 49 provides thus:

'The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal;

Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.'

9. The relevant provisions of the Civil Procedure Code may now be noted. Omitting unnecessary words. Section 2(2) defines the word 'decree' its the formal expressions of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or- final. According to Section 2(9), 'judgment' means the statement given by the Judge of the grounds of a decree or order. Section 2(14) defines an 'order' thus:

' 'order' means the formal expression of any decision of a Civil Court which is not a decree.'

These three definitions under the Civil. Procedure Code make it manifest that both a decree as well as an order are formal expressions of any decision of a Civil Court. But a decree conclusively determines' rights of the parties with regard to all of any of the matters in controversy in a suit, and may be either preliminary or final, which words do not occur in the definition of the word 'order'., It is also noteworthy that the word 'judgment' may relate' both to a decree as well as an order.

10. We may now turn to the relevant provisions of the Land Acquisition Act. According to the scheme of the Act, Part II is entitled 'acquisition, preliminary investigation', and consists of Sections 4 - 17, while Part III is entitled 'Reference to Courtc and procedure thereon', and comprises Sections 18 - 28. Section 11 of the said Act reads thus:

'On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under' Section 4, Sub-section (1), and into the respective 'interests of the persons claiming the compensation and shall make an award, under his hand, of--

(i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land; and

(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.'

11. Section 18, the marginal note to which is 'Reference to Court', reads thus:

'(1) Any person interested who has not accepted the award may by written application the Collector require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) ......'

According to Section 3(c), the expression 'Collector' means the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the Local Government to perform the functions of a Collector under this Act

12. The word 'Court' is defined in Section 3(d) of the said Act thus:

''The expression 'Courts' means a principal Civil Court of original jurisdiction, unless the Local Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of (he Court under this Act.'

13. Section 22 lays down that all proceedings shall take place in open Court, and all persons entitled to practice in any Civil Court in the State shall be entitled to appear, plead, and act in such proceedings.

14. Old Section 26 was re-numbered by Act XIX of 1921 as Section 26(1), and Sub-section (2) was newly added. After the amendment, the section reads thus:

'(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 each 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 award a judgment Within the meaning of Section 2, Clause (2), and Section 2, Clause (9), respectively, of the Code of Civil Procedure 1908 (V of 1908).'

15. Section 54, which deals with appeals in proceedings before the Court, was substituted by the Amendment Act XIX of 1921 and it reads as follows-

'Subject to the provisions of the Code of Civil Procedure, 1908 (V of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary to any enactment for the time being in force, as 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 His Majesty in Council subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908 (V of 1908), and in Order XLV thereof.'

16. From a reading of these provisions, the following principles emerge. An enquiry by the Land Acquisition' Collector as to the value of the land and the amount of compensation to be paid for its acquisition resulting in an award is an administrative and not a judicial proceeding, and if the owner of the land desires a judicial ascertainment of the value of the land, he can require the matter to be referred by the Collector to the Court for determination:(Vide Ezra v. Secy, of State for India, ILR 32 Cal 605 (PC)). The Land Acquisition Court is a principal Civil Court of original jurisdiction. The land acquisition proceedings should take place in open Court.

The adjudication by the Court shall be in writing signed by the Judge, and specifying the amount awarded under Section 23(1) and the amounts respectively awarded under the other clauses of the same section, together with the grounds for awarding the amounts. That adjudication is called an 'award', but it is deemed to be a decree, and the statement of the grounds for such an award, a judgment within the meaning of Sections 2(2) and 2(9) of the Code of Civil Procedure.

The provisions of the C. P. C. apply to all proceedings before the Court under this Act. Subject to the provisions of the Code applicable to appeals and original decrees, and notwithstanding anything to the contrary in any enactment, an appeal is made available in any proceedings under this Act to the High Court from the award or any part of the award of the court under Section 26 of the Land Acquisition Act. From any decree of the High Court passed in such appeal, an appeal lies to the Supreme Court,, subject to the provisions in Section 110, and Order 45 of the Civil Procedure Code.

17. It may be mentioned that before the amendment of Section 54 in 1921, an appeal lay only to the High Court. The Privy Council in Rangoon Botntound Co. Ltd. v. The Collector, Rangoon, ILR 40 Cal 21 held that Section 54, as it then stood, gave only a limited right of appeal from the award of the Land Acquisition Court to the High Court, but gave no right to carry an award made in arbitration as to the value of the land taken for public purposes to the Judicial Committee, as if it were a decree of the High Court made in the course of it's ordinary jurisdiction. In order to get over the effect of this decision. Section 54 was amended. providing a second appeal against the decision of the High Court, formerly to the Privy Council and now to the Supreme Court, and also enabling the adjudication of the Land Acquisition Court executable as decrees. The amendment of Section 54 necessitated the addition of Sub-section (2) to Section 26, making it clear that the award of the Land Acquisition Court shall be deemed to be a decree and the reasons given therein a judgment.

18. It is thus manifest that an award of a Land Acquisition Court in fact is not a decree, but is deemed to be a decree, and the reasons in the award, a judgment. The word 'award' in the Land Acquisition Act is used in alt cases with reference to the amount of compensation awarded, or the distribution ' or the apportionment of the compensalion. It is also used in Section 11 to signify the result of the Collector's enquiry. But the distinction between the award of the Collector in Section 11, and the award of the Court in Section 26, as pointed out above, is well recognised.

19. Having regard to the above statutory provisions, we arc of the opinion that the award under Section 26 of the Land Acquisition Act is a formal expression of the decision of a Civil Court, and is, therefore, an 'order' within the meaning of Section 2(14) C. P. C. It is also a decree by virtue of the deeming provision in Section 26(2) of the said Act.

20. The effect of a deeming provision was considered by the Supreme Court in State of Bombay v. Pandurang Vinayak, : 1953CriLJ1049 . Their Lordships, at p. 246, observed thus:

'When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Vide Lord Justice James in Ex parte Walton; In re Levy, (1881) 17 Ch. D. 746 at p. 756.....................

In Eastend Dwelling Co. Ltd. v. Finsbury Borough Council, 1952 AC 109, Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows:

'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ........................... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

21. This decision was followed recently by the Bombay High Court in Kbattzabai Mohamed Ebra-him v. Controller of Estate Duty, Bombay, 1LR (1959) Bom 1603 (1621): (AIR 1960 Bom 61 (70). At p. 1621 (of ILR Bom): (at p. 70 of AIR Bom) the learned Judges observed thus:

'The expression 'deemed' is used a great deal in many modern statutes and for many purposes. It is at times used to give a special glossary or paraphrase to an expression or an artificial construction to a word or a phrase. It is at time used to remove uncertainty or leave no scope for doubts and debates which may involve defined and ingenious points. At times it is used to give extended or restricted operation to a rule which cannot be given to it if it be read as enacted. This last is of considerable importance when the Legislature lays down a rule the extent and operation of which according to ordinary canons of construction would be confined -- we shall take an illustration close to the case before us -- to property or the intention is that the rule should have wider extent and embrace more than what it states. In such a case the Legislature may well lay down and add that more than what is stated in the rule shall be deemed to be included in the meaning and concept of the wordg or phrase used in the rule. In such a case the language of the rule notwithstanding the operation 'and extent of it is widend by the 'deeming' provision.'

We follow the observations and hold that even be-'fore the amendment of Section 26 of the Land Acquisition Act, the adjudication of the Land Acquisition Court was an 'order and it has now become a decree within the meaning of Section 2(2) of the C. P. C. After the amendment, the meaning of the word 'Order' has been widened. It removes uncertainty and leaves no scope for doubt and debate involving an ingenious argument that it is not a decree in the ordinary sense, but only an award deemed to be decree. We therefore hold that it is a decree under the Civil Procedure Code for| all purposes. If that is so, if is a decree for purposes of appeal to the High Court.

22. This view of ours also gains support from a decision of the Full Bench of the Madras High-Court in Manavikraman Tirumalpad v. The Collector of the Nilgiris, ILR 41 Mad 943: (AIR 1919 Mad 626). In that case, a question arose whether an-appeal to the High Court lay under Clause 15 of the Letters Patent against a decision of a Bench of two judges of that Court.

A preliminary objection was taken that the appeal was not competent. Following the decision of the Privy Council in ILR 40 Cal 21 the Full Bench held that the decision of the High Court in. a land acquisition appeal is not a 'judgment' within Clause 15 of the Letters Patent so as to enable a party to file a further appeal to the High Court under that article. Their Lordships also held that Section 54 of the Land Acquisition Act, that the appeal to the High Court is subject to the provisions of the Code of Civil Procedure, is applicable to appeal from original decree, and consequently Section 98 C. P. C. applies. Adverting to the contention that in Sub-section (2) of Section 98, C. P. C. the words 'decree' and 'judgment' are used, Abdur Rahim, J-, with whom Old field, J. agreed, observed thus:

'No doubt in Sub-section (2) of that Section the words 'decree' and 'judgment are used, but these are the ordinary terms used in Part VII of the Code dealing with appeals from original decrees, as also elsewhere throughout the Code. But Sub-sections (1) and (2) of Section 98 do not confer any right of appeal; they only lay down how an appeal heard by a Bench of two of more Judges is to be disposed of in certain contingencies. The principle governing the question as to the right of appeal to the Privy Council or to the High Court under Clause 15 of the Letters Patent has no application to Section 98. The provisions of the Civil Procedure Code relating to appeals from original decrees as laying down the procedure for the hearing and disposal of such appeals are made applicable to appeals under Section 54 of the Land Acquisition Act by express reference. The application of those provisions cannot therefore be excluded because of the use of the words 'judgment'' and 'decree' in the sections, orders and rules bearing on the subject'

Dealing with the contention that if the decision of the High Court in an appeal under Section 54 is not a decree or order of a Civil Court, the Bench which was constituted under Rule 2 of the Appellate Side Rules and which heard the appeal, had no jurisdiction to hear it, it was observed as follows:

'I am not prepared to hold that there is force in this contention though the argument is not without an appearance of plausibility. The rules are framed under the powers vested in the High Court not merely by the Charter Act and the Letters Patent but also by the Civil Procedure Code, and as the provisions of the Civil Procedure Code relating to appeals from original decrees are expressly made applicable to appeals to the High Court from the award of a land acquisition Judge, I should think that the words 'decree or order of a civil court in Clause (a), Sub-rule (2) of Rule 2 of the Appellate Side Rules do not preclude the application of this rule to cases of appeals under Section 54 of the Land Acquisition Act. The District Judge, against whose award the appeal was heard, tried the case as the tribunal designated as the principal civil Court of original jurisdiction, and in my opinion, it would not be unduly straining the language of Rule 2 (Appellate Side Rules) to say that the award of such a Court is 'a decree or order of a Civil Court' for purposes of the procedure to be followed in the hearing and disposal of an appeal from an award of the Court as prescribed by the provisions of the Code of Civil Procedure which are expressly referred to in Section 54.'

Rule 2 of the Madras Appellate Side Rules reads thus:

The following matters may be hear3 and determined by a Bench of two Judges:.........

(1) Every application, petition, suit or appeal, referred by a Bench of one Judge;

(2) Every appeal, (a) from the decree or order of a Civil Court except those mentioned in Rule 1;

This decision of the majority of the Full Bench is binding upon us, and it is a direct answer to the contention of the learned counsel for the appellants that the appeal to the High Court under Section 54 is not against a decree or order of a Civil Court. According to it the adjudication of the Land Acquisition Court is an order for purposes of appeal under Section 54 of the Land Acquisition Act, and the provisions of the Civil Procedure Code That being so, it is an order within the meaning of Section 48 of the Court-fees Act. It follows there from that the Court-fee has got to be paid on the difference between the amount awarded and the amount claimed by the appellant.

23. We may also add that it has consistently beet held by all the Courts that in an appeal against an award of the Land Acquisition Court claiming additional compensation, ad valorem Court-fee is payable under Section 8 of the Court-fees Act (VII of 1870), which is word for word identical with Section 48 of the Act, and that fixed Court-fee cannot be paid under Schedule II, Article 17 (iv) of the Court-fees Act, 1870.

24. In In re Ananda. Lal Chakrabutty, 35 Cal WN 1103 : (MR 1932 Cal 346), it was observed by Lord Rankin, C. J.. that Section 8 of the Court-fees Act, 1870, docs not itself impose an ad valorem charge, but lays down 'in what particular way the fee is to be charged, on the assumption that it has been charged by the Act already, and that it really favours the subject inasmuch, as it means that even if the Appellant may say that the total amount of the compensation ought to have been higher than has been actually awarded or may raise question of title which re quires to be investigated, he has always to pay court-fees only on the difference between the amount which he claims for himself and the amount awarded to him. It may be noted that in that case a contention was also raised that Article 11, Schedule II of the Court-fees Act applied as the award of the Tribunal is not a decree, and it is an appeal from an order which hag not got the force of a decree. The learned Chief Justice observed:

'It is not necessary to consider whether the tribunal's award which is an order and not a decree is an order having the force of a decree. Whatever the effect of that phrase may be, Section 8 shows one perfectly clearly that an appeal regarding compensation in a Land Acquisition case is not under Art.11 of Schedule. II, because it is no' a fixed fee at all. In this connection, 1 will only add that I think the provisions of Section 8 have been mis-interpreted, because Section 8 is really a pro-vision (upon the assumption that there is a ready an ad valorem fee laid down by the Act), that the ad valorem charge is to be made in a way that is most favourable to the subject. The object of Section 8 is not to impose an ad valdrem charge: it assumes that that has already been done.....................

Nevertheless, the section has to be taken into account when one is construing the Act as a whole and on the face of that section, I have no doubt at all that an ad valorem fee is chargeable under Article 1 of Schedule 1 of the Court-fees Act.'

25. In Debi Din v. Secy, of State, AIR 1939 All 137, it was held that an order of compensation passed by a tribunal constituted under the U. P. Town Improvement Act is an order of Civil Court, and that- the Court-fee payable on a memorandum of appeal against such an order by the Tribunal comes under Section 8, Court-fees Act, and is to be paid on the difference between the amount awarded and the amount claimed by the appellant, and it should not be a fixed Court-fee under Schedule II, Article r?(iv). It was also held that Section 8 would apply whether the appellant is the person claiming compensation o: whether the appellant is the Secretary of State. The learned Judge (Bennet, J.), observed thus:

'This appears to imply that King, J., thought that an ad valorem fee under Article I, schedule I-is stated to be on a memorandum of an appeal from a decree. The words 'from a decree' do not occur in this Article, and there seems no reason to read those words into the Article as they are not there. No such distinction therefore can be drawn in regard to Article I, Schedule I between appeals from decrees. Section 8 speaks of an appeal against an order relating to compensation am! does not state that the order should amount to a decree. Against applying the words in Section 8, learned counsel for the appellant next argued this the word 'order' would not cover the order of a tribunal because he said it is not an order of a Civil Court; alternatively his argument was that word 'order' would not cover the award by a tribunal.'

After extracting the provisions of Section 4(2), C. P. C., and Sections 57 and 58fa) of the U. P. Town Improvement Act, 1919 the learned Judge observed:

'These provisions show clearly that the Tribunal is a Civil Court. There is no doubt that the award of the Tribunal Is the formal expression of its decision, and as learned counsel for appellant claims that this award is not a decree (See U. P. Act 3 of 1920, The U. P. Town Improvement (Appeals) Act) it follows under the definition in Section 2(14), Civil Procedure Code, that the award is an order of a Civil Court. Accordingly therefore Section 8 Court-fees Act, will apply.'

26. This decision was followed by Wadia, J., in Hirjivirji Jangbari y Govt of Bombay,, AIR 1945 Bom 348, and it was held that the word 'order', in Section 8, Court-fees Act,; means an order, as defined in Section 2(14),-C. P. C., namely, the formal expression of a decision of a Civil Court which is not a decree. On the facts of that case,'' it was held that, inasmuch as the arbitrator in that ease, was 'not a Civil Court as under the Land' Acquisition Act, an order passed by it was not an 'order' under the Civil Procedure Code.

27. We follow the principle laid down in these two cases and hold that, the legislature, with a view to give a wider ambit, used the word 'order' in Section 8 Court-fees Act of 1870 as well as Section 48 of the Act, so as to include orders relating to compensation which are not decrees, but which are none the less appealable.

28. Irshad Husairn v. Bakshish Husain, AIR 1946 Ondh 254 appears to take a contrary view. But, with great respect to the learned Judges, we are unable to follow the decision for the reasons stated above.

29. We are, therefore, of the opinion that Section 48 of the Act, which deals expressly with an appeal claiming enhanced compensation, applies to the case, and not Section 49-

30. The appellants also claim 15 per cent statutory solatium besides the compensation amount, ''it was' laid down in Brahrnanandam v. Secy, of State, AIR 1930 Mad 45 that where a person being dissatisfied with the amount of compensation awarded to him under Section 18, Land Acquisition Act, wants to appeal, insisting in case of his success that not only the excess market value but also 15 per cent, of the same should be decreed in his favour, he must pay Court-fees not only on the excess market value, but also on 15 per cent thereon. It is also needless to point out that since the appellants are claiming interest on that amount, they are bound to pay Court-fee on that amount as well.

31. The learned counsel for the appellants placed reliance on The Collector of Rangoon v. Chandramnia, 28 Ind Cas 260: (AIR 1915 Low Bur 94 (1) ) a decision of the Rangoon High Court, for holding that an award under the Land Acquisition Act is neither a decree nor an order. For one thing, that is a decision of the year 1015, i.e.. prior to the amendment of Section 20 of the' Land Acquisition Act. Even otherwise in view of the foregoing discussion we cannot accept the contention that the award of the Land Acquisition Court is neither a decree nor an order.

32. The decision in Bagavathi Doss Bavaji v. Sarangaraja lyengar, ILR 54 Mad 722 : (AIR 1931 Mad 586) has no direct bearing, as in that case the Special Officer was the Chief Judge of the Court of Small Causes, a Court governed by the Special Act of the Legislature which gave no right of appeal to any other Court, and therefore, it did not constitute a principal 'Civil Court of original jurisdiction within the meaning of Section 3(d), Land Acquisition Act. The facts of that case are thus distinguishable.

33. The decision in Secy, of State v. Narayana-swami Chettiar, ILR 55 Mad 391: (AIR 1932 Mad 55), was cited by the learned counsel in. support of his contention that the award of Land Acquisition 'Courts; deciding the amount of compensation are. 'awards, but the decision .of the Court upon a 'reference' regarding other matters are not awards of decrees. As we have already held that an order under 'Section 26 of the Land Acquisition Act is both a decree 'as' well as an order, this case is of no assistance to the appellants.

34. The decision of :a Full Bench of the Madras High Court in Rajagopala Chettiar v. H.R.E. Board, Madras, ILR 57.Mad 271: (AIR 1934 Mad 103 (2) ) (FB), it was also relied on by the learned counsel. This was referred to by a later Full Bench of the same High Court in Chikkanna Chet-tiar v. Perumal Chettiar, ILR (1940) 'Mad 791: (AIR. 1940 Mad 474) (FB), and it was held 'that the interpretation 'put upon the decision of the Privy Council in T.B. Ramachandra Rao v. N. S. Ramachandra Rao, ILR 45 Mad 320: (AIR 1922 PC So) by the learned Judge's Jn ILR 57 Mad-271: (AIR 1934 Mad 103- (2))' (FB) followed in Krishnamoorthi Ayyar y. Special Deputy Collector of Land Acquisition, Kumbakonsam ILR 59 Mad, 554: (AIR 1936 Mad 514) could riot be ac-'cepted in view of'ihe decision of the Privy Council) in Mt. Bhagwati v. Mt. Ram- Kali, ILR (1939) All 460 (AIR 1939 PC 133).

35. The learned counsel, also referred to a decision of the Madras High Court in In re Venkata-ratnam, ILR (1941) Mad 935:: (AIR ,1941 Mad 639), wherein it was laid down that Schedule II, Article II of the Court-fees Act, 1870, applies to cases in which the statute provides that an order shall be subject to an appeal as if it, were a decree, and that Article 17-A has no application, and consequently an appeal under Rule 9 of the rules framed under the Madras : Agriculturists' Relief Act falls under Schedule II, Article 11 of the Court-fees Act, r87o. We have already stated above our reasons for holding how Schedule II, Article 11 is not applicable to the instant case, and ad valorem Court-fee is payable. Further, the language in Rule 9 of Madras Act IV of 1938 is different from that in Section 26(2) of the Laud Acquisition Act.

36. For all the above reasons, we are of the-opinion that Section 48 of the Act, which expressly deals with appeals claiming enhanced compensation, governs the case, but not Section 49.

37. We, therefore, hold that the objection raised by the office must be up-held, and the appeal (S, R. No. 45213 of 1962) will be numbered only on payment of the Court-fee demanded. The appellants shall pay the costs of this reference Advocate's fee Rs. 100/-. Time for payment of Court-fee one month.


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