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Suresh Kumar Vs. Town Improvement Trust, Bhopal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 78 of 1974
Judge
Reported inAIR1975MP189
ActsCourt-fees Act, 1870 - Sections 4, 6 and 8; Madhya Pradesh Town Improvement Trusts Act, 1960 - Sections 147; Constitution of India - Article 227
AppellantSuresh Kumar
RespondentTown Improvement Trust, Bhopal
Appellant AdvocateA.K. Chitley, Adv.
Respondent AdvocateJ.P. Bajpai, Deputy Adv. General
Cases ReferredLaxminarayana v. Revenue Divisional Officer
Excerpt:
- - 3,000/- for the well and rs. 5,000/- for the well, rs. as would appear from section 6 of the court fees, act and various other provisions in the act, the act provides for fees payable on documents filed or exhibited in a court of justice as well as in any public office......that the section creates a fiction whereby the decision of the tribunal is treated as an original decree of a civil court. it would be difficult to accept this contention because section 148 of the act only deals with the procedure in appeals. we do not find any provision in the act corresponding to section 26 of the land acquisition act which provides, that an award under the said act shall be deemed to be a decree. but, although there is no provision in the act creating a legal fiction whereby the decision of the tribunal may be treated for all purposes as a decree of the civil court, there can be no doubt that such a decision has the force of a decree in view of sub-section (3) of section 78 of the act. 16. learned counsel for the appellants has relied on the decision of the delhi.....
Judgment:

S.M.N. Raina, J.

1. This is an appeal under Section 147 (a) of the Madhya Pradesh Town Improvement Trusts Act, 1960 (hereinafter referred to as 'the Act') against the decision of the Tribunal relating to compensation.

2. Land belonging to the appellant has been acquired under the Act. As theappellant did not accept the compensation offered by the respondent, the Trust made a reference to the Tribunal under Section 72(3) of the Act, The Tribunal awarded to the appellant compensation at the rate of Rupees 6,000/- per acre for the land, Rs. 5,000/-for the building, Rs. 3,000/- for the well and Rs. 815/- for the trees. Thus the Tribunal awarded a total sum of Rs. 1,20,060/- inclusive of interest as compensation to the appellant. The contention of the appellant is that he is entitled to compensation at the rate of Rs. 20/- per sq. yard for the land, Rs. 20,000/- for the building, Rs. 5,000/- for the well, Rs. 2,500/- for the trees and Rupees 10,000/- for loss of business and earnings. He thus claims a sum of Rs. 13,39,056/-. He, however, affixed a Court-fee of Rs. 7.50 on the memorandum of appeal treating it as an appeal under Article 11 of schedule II to the Court-tees Act. The office is of the view that ad valorem Court-fee is payable on the amount of compensation claimed, by the appellant in excess of that awarded by the Tribunal under Article 1-A of Schedule I read with Section 8 of the Court-fees Act, As the appellant did not agree with this view of the office, the matter went before the Taxing Officer who has referred it to the Taxing Judge for a decision whether ad valoren. Court-fee is payable.

3. There are fifteen other connected appeals of a similar nature out of which thirteen have been filed by the Improvement Trust for reducing the amount of compensation awarded by the Tribunal. A similar point is involved in these appeals and has been referred to this Court for decision by the Taxing Officer.

4. Although the main contention of the learned counsel for the appellants is that the matter is governed by Article 11 of Schedule II of the Court-fees Act, a feeble argument was advanced at the hearing that such an appeal is not governed by the provi-sions of the Court-fees Act at all. It would be proper to deal with this argument before proceeding to consider by which provisions of the Court-fees Act, these memoranda of appeal would be governed.

5. It was urged that Court-fee is not leviable on the memorandum of appeal in question either under Section 3 or under Section 4 of the Court-fees Act. Section 3 provides for levy of fees in High Courts on their original side. It is, therefore, obvious that it is not attracted in this case. The main point for consideration, therefore, is whether Court-fee is leviable under Section 4 of the Court-fees Act. Section 4 provides, inter alia, that no document of any of the kinds specified in the First or Second Schedule of the Act shall be received by the High Court in the exercise of its Jurisdiction as regards appeals from the Courts subject to its superintendence unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedulesas the proper fee for such document. It has been urged that the Tribunal cannot be said to be a Court subject to the superintendence of the High Court. I find no merit in this contention. The word 'court' has not been defined in the Court-fees Act and must, therefore, be construed in its widest sense as including Tribunals which perform judicial functions. In Secy. of State v. H. C. I. Society AIR 1931 PC 149 their Lordships, while dealing with a case under the Calcutta Improvement Act, 1911, expressed a doubt whether the Tribunal constituted under the said Act was a Court; but that was apparently because it was a body free from the control and superintendence of the High Court. Their Lordships expressly observed at page 153 that they did not consider it necessary to express any opinion on the question and, therefore, this decision is of no help to the appellants. It appears that under the Calcutta Improvement Act there was no provision for an appeal against the award of the Tribunal, which was final, and an appeal lay only on a certificate by the President. The position under the Madhya Pradesh Town Improvement Trusts Act is different. An appeal lies against the decision of the Tribunal to the High Court under Section 147 of the Act. Moreover, the Tribunal consists of a President and two assessors. The President must be a member of the State Judicial Service who has at least served for three years as a District Judge or an Additional District Judge, or is a barrister of not less than ten years standing vide Sub-section (3) of Section 73 of the Act. Clause (b) of Sub-section (1) of Section 78 of the Act provides that the President may summon witnesses and enforce their attendance and may compel the production of documents in the same manner as a Civil Court under the Code of Civil Procedure. It is thus clear that the Tribunal has almost all the attributes of Civil Court inasmuch as it has to function judicially on the basis of evidence adduced by parties and as such it is a Court within the meaning of Section 4. There can be no doubt that the Tribunal is subject to the superintendence of the High Court under Article 227 of the Constitution of India. Thus the Tribunal is a Court subject to the superintendence of the High Court and as such Section 4 of the Court-fees Act is attracted.

6. Before I proceed to consider whether the matter is governed by Article 11 of Schedule II or not, it is necessary to refer to Section 8 of the Court-fees Act which is reproduced below:

'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.'

7. Learned counsel for the appellants urged that the said section is not applicable to fees payable to the High Court because itoccurs in Chapter III, the heading of which is as under :

'Fees in other Courts and in Public Offices.'

If we compare this heading with the heading of Chapter II, it no doubt appears that Chapter III is not applicable to High Court; but if we carefully scrutinize the various provisions in Chapter III, it would be clear that the heading of the Chapter is not at all appropriate and is misleading. Headings or Titles prefixed to sections or group of sections may be referred to as aids to construction of doubtful expressions; but the title of a Chapter cannot be used to restrict the plain terms of an enactment.

8. In R. v. Surrey (North Eastern Area) Assessment Committee (1947) 2 All ER 276, at p. 278. Lord Goddard, C. J. observed as under:

'While, however, the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is clear that those headings cannot be used to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words.'

9. In Bhinka v. Charan Singh, AIR 1959 SC 960 their Lordships quoted with approval at page 966 the following rule of construction of statutes from 'Maxwell on Interpretation of Statutes.'

'The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.'

10. In re Ananda Lal AIR 1932 Cal 346, Rankm, C. J. held Section 8 to be applicable to the High Court; and I entirely agree with this view.

11. There can also he no doubt that the award of the Tribunal amounts to an order relating to compensation for the acquisition of laud for public purposes. Learned counsel for the appellant argued that the word 'order' occurring in this section should be construed in the sense in which it is defined in Section 2(14) of the Code of Civil Procedure. According to Clause (14) of Section 2 of the Code of Civil Procedure 'order' means the formal expression of any decision of a Civil Court which is not a decree. As pointed out above, although Tribunal is a Court, it is not a Civil Court for the purposes of the Code of Civil Procedure and, therefore, an order of the Tribunal does not fall within the purview of Section 2(14) of the Code of Civil Procedure. But in the absence of any definition of the word 'order' in the Court-fees Act there appears to be no justification for construing it in such a restricted sense. As would appear from Section 6 of the Court fees, Act and various other provisions in the Act, the Act provides for fees payable on documents filed or exhibited in a Court of Justice as well as in any public office. As the provisions of the Court-fees Act relate not only to Civil Courts but to any Court of Justice and even a public office, it would not be proper to construe the word 'order' occurring in Section 8 in a limited sense as defined in Section 2(14) of the Code of Civil Procedure, In fact the expression 'order relating to compensation under any act for the time being in force for the acquisition of land for public purposes' shows that it covers all orders of Courts and Tribunals relating to compensation for the aforesaid purposes under any enactment. There is also ample authority for this view.

12. In Satya Charan v. State of West Bengal, AIR 1959 Cal 609 an award under Section 7 of the Requisitioning and Acquisition of Immovable Property Act, 1952 was held to fall within the purview of Section 8 of the Court-fees Act. In Debi Din v. Secy. of State AIR 1939 All 127 an order of compensation passed by a Tribunal constituted under the U. P. Town Improvement Act wns held to be an order of Civil Court. With respect, I am unable to agree with this view. In my view, although the order does not amount to in o-;ler of a Civil Court, it s an order within the purview of Section 8 of the Court-fees Act.

13. In Srunguri Lakshminaravana Rao v. Revenue Divisional Officer, Kakinada AIR 1968 Andh Pra 348 it was held that an award made under the provisions of the Requisitioning and Acquisition of Immovable Property Act 1952 was an order within the meaning of Section 8 of the Court-fees Act and ad valorem Court-fee is payable. I, however, agree with the learned counsel for the appellant thar Section 8 is not a charging section. It merely provides how the court-fee is to be computed in respect of appeals falling within the purview of the said section. The charging provisions are contained in the Schedules read with Sections 3 and 4 of the Court-fees Act. We have, therefore, to examine under which Article the matter falls.

14. I now proceed to consider whether Court-fee is payable under Article 11 of Schedule II of the Court-fees Act or under Article 1-A of Schedule I to the said Act. From the language of Article 1-A of Schedule I to the Court-fees Act, it is clear that it is not attracted if the matter is governed by any other Article. The only Article suggested is Article 11 of Schedule II; and we have, therefore, to consider whether the matter falls within the purview of this Article. The said Article is re-produced below for facility of reference:

'11. Memorandum of appeal when the appeal is not froma decree or an order having the force of a decree.

(a) When presented to a High Court.

Seven rupees & fifty paise

(b) When presented to a Civil Court other than HighCourt.

Three rupees'.

It is clear from the language of this Article that it would not be attracted where an appeal is from a decree or an order having the force of a decree. The basic question for consideration, therefore, is whether the decision of the Tribunal can be said to be an order having the force of a decree within the meaning of the said Article. In connection with the construction of this Article also it was urged by the learned counsel for the appellant that the word 'order' should be construed as defined in the Code of Civil Procedure. In Clause (14) of Section 2 of the Code of Civil Procedure 'order' means the formal expression of any decision of a Civil Court which is not a decree. I do not, however, find any justification for construing the word 'order' in Article 11 in such a restricted sense for the reasons already given above while discussing the construction of the word 'order' occurring in Section 8 of the Court-fees Act.

15. The next point to be considered is whether the decision of the Tribunal has the force of a decree. Sub-section (3) of Section 78 of the Act provides that every decision of the Tribunal shall be enforced by a competent Civil Courr as if it were a decree of that Court. From this provision it is clear that the decision of the Tribunal is enforceable as a decree of the Civil Court and as such has the force of a decree within the meaning of Article 11 of Schedule II to the Court-fees Act. The learned Deputy Advocate-General in this connection also referred to Section 148 of the Act which provides that the provisions of the Code of Civil Procedure with respect to appeals from original decrees shall apply to appeals under the Act. He urged that the section creates a fiction whereby the decision of the Tribunal is treated as an original decree of a Civil Court. It would be difficult to accept this contention because Section 148 of the Act only deals with the procedure in appeals. We do not find any provision in the Act corresponding to section 26 of the Land Acquisition Act which provides, that an award under the said Act shall be deemed to be a decree. But, although there is no provision in the Act creating a legal fiction whereby the decision of the Tribunal may be treated for all purposes as a decree of the Civil Court, there can be no doubt that such a decision has the force of a decree in view of Sub-section (3) of Section 78 of the Act.

16. Learned counsel for the appellants has relied on the decision of the Delhi High Court in Mangal Sen v. Union of India AIR 1970 Delhi 44. In that case it was held that an appeal against an order relating to compensation for acquisition of land, under Section 7 of the Resettlement of Displaced Persons (Land Acquisition) Act is chargeable with Court-fee under Schedule II, Article 11 of the Court-fees Act, as such an order is neither a decree nor an order having the force of a decree, The ratio of the said decision would be clearfrom the following observations in paragraph 27:

'Section 8 no doubt provides for mode of computation of Court-fee on an order relating to compensation but before any question of computation of Court-fee can arise the order itself must fit in the strait-jacket of one or the other provision of Schedule I or II and this can only be if it is held that Section 8 is confined to orders as understood in the Civil Procedure Code and where any document does not fall within a decree or an order having the force of a decree it should be held to be covered by Article II of Schedule II.'

17. I entirely agree with the view expressed in the aforesaid case that Section 8 of the Court-fees Act deals only with computation of Court-fee. It is not a charging section and in view of the provisions of Section 4 Court-fee is chargeable under either of the Schedules to the Act. But in my view Article 11 of Schedule II is not applicable because the order of the Tribunal is an order having the force of the decree within the meaning of the said Article. In the Delhi case the learned Judges seem to have proceeded upon the view that an order contemplated by the said Article is an order of the Civil Court as defined in Section 2(14) of the Code of Civil Procedure. Coming to this conclusion they relied upon the decision of the Bombay High Court in Hirji Virji Jangbari v. Govt. of Bombay, AIR 1945 Bom 348 and Kanwar Jagat Bahadur Singh v. Punjab State, AIR 1957 Punj 32. With great respect, I am, however, unable to agree with this view for the reasons already given above.

18. The learned Deputy Advocate-General relied on the decision of this Court in Rishiraj Singh v. Raghubar Singh 1968 MPLJ 461 = (AIR 1968 Madh Pra 228); but that was a case under the Land Acquisition Act and it was held therein that a decision by the Additional District Judge on a reference made under Section 30 of the Land Acquisition Act was a decree. That decision cannot, however, be considered to be an authority for this case, as the provisions of the said Act are not in pari materia with those of the Act in question. Another case relied upon by the learned Deputy Advocate-General is Laxminarayana v. Revenue Divisional Officer AIR 1968 Andh Pra 348 to which reference has already been made above. In that case it was, held that in an appeal against an award under Section 7 or the Requisitioning and Acquisition of Immovable Property Act, 1952, ad valorem Court-fee is payable under Article 1 of Schedule I to the Court-fees Act. I entirely agree with this view for the reasons already given above.

19. I, therefore, hold that ad valorem Court-fee is payable on the memorandum of appeal under Article 1-A of schedule I of the Court-fees Act read with Section 8 thereof on the subject matter of the claim in appeal.

20. To sum up my conclusions are asunder:

(i) Court-fee is leviable on appeals under Section 147 of the Madhya Pradesh Town Improvement Trusts Act, 1960 in view of Sec-ion 4 of the Court-fees Act.

(ii) Section 8 of the Court-fees Act is applicable to such appeals but that Section only deals with computation of Court-fees; the charging provisions are contained in the Schedules to the Court-fees Act read with Section 4 of the Act.

(iii) Article 11 of Schedule II of the Court-fees Act is not attracted because an award of the Tribunal under the Act is an order having the force of a decree within the meaning of the said Article.

(iv) Court-fee on such appeals by a claimant is payable ad valorem on the amount of compensation claimed by him in excess of that awarded by the Tribunal under Article 1-A of Schedule I of the Court-fees Act read with Section 8 thereof.

(v) In the case of an appeal by the Trust ad valorem Court-fee is payable on the difference between the amount awarded by the Tribunal and the amount which, according to the Trust, should be awarded as compensation, under Article 1-A of schedule I of the Court-fees Act read witb Section 8 thereof.


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