I.S. Tiwana, J.
1. The short but significant question of law that needs to be considered by this Bench on a reference is as follows:
'How and in what manner a counsel's fee is to be assessed or quantified in the memo of costs while preparing a High Court decree inland acquisition matters in terms of Rule 7(ii), Chapter 4-H, Volume V of the High Court Rules and Orders?
It arises on the following facts:--
In Regular first appeal No. 148 of 1980, filed by the union Territory of Chandigarh against the award of the Land Acquisition court on a reference under Section 18 of the land Acquisition Act (hereinafter referred to as the Act), the cross-objections filed by the petitioners were allowed by this Court on November 24, 1980, with proportionate costs. At the time of calculating the costs, the office, in accordance with the prevalent practice, put up the papers to the Judge to elicit his orders with regard to the quantum of counsel's fee. The learned counsel for claimant-petitioners then filed this miscellaneous petition raising an objection to this procedure being adopted and challenging it on various grounds.
2. The practice that is prevalent in this Court in this regard is that when a Regular first Appeal under the Act is decided by a learned single Judge the case goes back to the Branch for the preparation of the memo of costs. While preparing the memo of costs, the office submits the case to the learned Judge soliciting his orders with regard to the quantum of the counsel's fee to be added. This procedure is adopted in spite of the fact the counsel has put in his fee certificate on the court file. The fee so specified by the learned Judge is then added as counsel's fee in the memo of costs.
3. We are told that this procedure is adopted in view of Rule 8 of Chapter 6-I of Volume V of the High Court Rules and Orders as the proceedings in the Land acquisition matters are treated as miscellaneous proceedings.
4. The stand of the counsel for the claimants is that the Regular First appeals or the cross-objections to the same in land acquisition cases cannot possibly be treated as miscellaneous proceedings for purposes of preparing the memo of costs. Rather, according to the leaned counsel, these cases have to be treated as suits for recovery of specific property and the counsel's fee has to be assessed or determined on the basis of the value of the property involved like all other cases or suits filed for the recovery of specific amounts. His stand further is that once the Court has passed orders in an appeal or the cross-objections to the same, allowing it with costs or proportionate costs, then the matter has not to be referred to the Judge for the determination of the quantum of the counsel's fee in the absence of the party or his counsel. To support his above noted contention, the learned counsel adopts this process of reasoning.
5. According to sub-section (2) of Section 26 of the Act, which sub-section was brought in by way of amendment by Section 2 of the Land Acquisition (amendment) Act XIX of 1921, every award given by the Land Acquisition Court has to be deemed to be a decree and the statement of grounds of every such award a judgment within the meaning of Section 2, Clauses (2) and (9), respectively, of the Code of Civil Procedure. An appeal against such an award or a part thereof lies to the High Court and further against the decree of the High Court is maintainable in the Supreme Court. Therefore, according to the learned counsel, it follows that a decision of the High Court on appeal from a judgment and decree is also a judgment and decree. It is on the basis of this legal position that an appeal against the award of the Land acquisition Court is treated as a Regular first Appeal for purposes of court-fee and limitation et cetera and a Letters Patent Appeal is maintainable before a division Bench against the decree passed by the leaned single Judge. It is also pointed out that in view of the provisions of Section 53 of the Act, the Code of Civil Procedure is applicable to all proceedings before a court under the Act save in so far as that procedure is not consistent with anything contained in the Act. This necessarily attract the applicability of Section 35 of the Civil Procedure Code to the proceedings under the Act as there is nothing inconsistent in that provision to the provisions of the Act. We find that the above noted legal position as brought out by the learned counsel is wholly tenable.
6. Section 35 of the Civil Procedure Code lays down that subject to such conditions and limitations as may be prescribed the costs of and incident to all suits shall be in the discretion of the Court and the Court shall have full power to determine by whom, out of what property and to what extent such costs are to be paid and to give all other necessary directions for the purposes aforesaid. 'Prescribed' is defined in the code as meaning prescribed by the rules and 'rules' mean Rules and forms contained in the first Schedule or made under Section 122 or Section 125 thereof. Thus, it is apparent that the discretion of the Court under Section 35, Civil Procedure Code, can only be taken away by the conditions and limitations which may be prescribed by law. If any rule is contained in the High Court Rules and Orders, referred to above, which rules have undisputedly been framed in exercise of the powers of this Court under Section 122 of the Code, then the power to assess or determine costs has to be regulated by the rules covering the matter and is not left to the discretion of the learned Judge. The rules which according to the learned counsel for the claimants govern the matter in hand are laid down in Para I of chapter 6-I, Volume V. of the High Court Rules and Orders. Out of these rules, which according to the learned counsel, specifically deal with the fee payable as costs by a party in respect of the fee of his adversary's Advocate in suits for the recovery of specific property and which squarely apply to the facts of the case in hand, is Rule 1, on which primary reliance is placed by the learned counsel in support of his plea and this rule reads as follows:--
'1. In suits for the recovery of specific property or a share of a specific property, whether moveable or immoeable, or for the bench of any contract or for damages--
(a) If the amount of value of the property, debt, or damages decreed shall not exceed rupees five thousand according to the valuation for purposes of appeal to the Court, the fee shall be calculated at seven and a half percent (7.5%) on the amount or value decreed, but the Court may, in any case, otherwise order and fix such percentage as shall appear to be just and equitable;
(b) If the amount or value decreed shall exceed rupees five thousand, the fee payable shall be calculated at such a percentage as shall appear to the Court to be just and equitable.'
Rule 12 of these Rules lays down that in appeals fee shall be calculated on the same scale as in original suits and the principles of the above rules as to original suits shall be applied as nearly as maybe in appeals.
7. The only contention raised by the counsel appearing on the other side is that the above noted rule does not interms apply to claims for compensation of the acquired property and rather applies to a decree which has been awarded in suit for the recovery of a specific property or a share of the specific property movable or immovable. According to the counsel, a claim for compensation in acquisition proceedings cannot be said to be a suit for the recovery of any specific property. To examine the respective contentions of the learned counsel for the parties, it is but necessary to know the scope of the term 'property' and whether a reference under Section 18 can be treated as a suit.'
8. So far as the first aspect of the matter is concerned, it received consideration of their Lordships of the Supreme Court in Madan Mohan Pathak v. Union of India, AIR 1978 SC 803, while examining the matter in the context of the grant of bonus to Class III and Class IV employees of the Life Insurance Corporation of India. The specific question posed and answered by their Lordships was as to whether the debts due and owing from the Life Insurance Corporation were the property of Class III and Class iv employees within the meaning of Article 31(2) of the Constitution of India. This is what was observed by their Lordships in this regard (at p. 820):--
'It is clear from the scheme of fundamental rights embodied in Par III of the Constitution that the guarantee of the right to property is contained in Article 19(1)(f) and cls.(1) and (2) of Article 31. It stands to reason that 'property' cannot have one meaning in Art. 19(1)(f), another in Art. 31, Clause (1) and still another in Art. 31, Cl (2). 'Property' must have the same connotation in all the three Articles and since these are constitutional provisions intended to secure a fundamental right, they must receive the widest interpretation and must be held to refer to property of every kind.'
9. After referring to a claim of authorities, wherein this matter had been considered earlier, their Lordships further concluded as follows (at p. 821):--
'It would, therefore, be seen that property within the meaning of Art. 19(1)(f) and Clause (2) of Art. 31 comprises every form of property, tangible or intangible, including debts and choses inaction, such as the unpaid accumulation of wages, pension, cash grant and constitutionally protected privy purse. The debts due and owing from the Life Insurance Corporation. In respect of annual cash bonus were, therefore, clearly, property of Class III and Class iv employees within the meaning of Art. 31(2).'
It is thus clear from the above observations of the Supreme Court that 'property' would include debts and choses inaction, or in other words the amounts that can be claimed on the basis of a legal right enforceable through a Court of law. To our mind, the word 'property' cannot be given a different meaning in the context of the above-quoted rule. We are, therefore, of the considered opinion that a claim for compensation for the acquired land would thus fall within the meaning of 'Property' as used in this rule.
10. As regards the other aspect of the matter, as noticed earlier, we find that the same is not res integra so far as this Court is concerned. In Phurman v. State of Punjab, ILR 91963) 2 Punj 442, a specific argument was raised that an application under Section 18 of the Act could not be equated with a suit and the applicant could not be called a plaintiff but the same was repelled, holding that an application under Section 18 of the Act is to be treated as a suit and the applicant as a plaintiff. For this pronouncement reliance was placed on earlier judgments dealing with the matter in Ezra v. Secretary of State for India, (1905) ILR 32 Cl 605(PC), Fakir Chand v. Municipal Committee, Hazra, 1913 Pun Re 59 and in the Matter of Rustamji Jijibhai, (1906) ILR 30 Bom 341. Otherwise, also, we find that the word 'suit' has not been defined in the code. Interms of Section 26 of the code, it can be taken to be a Civil Proceeding instituted by the presentation of a plaint or in any such other manner as may be prescribed. If the award of the Land Acquisition Court has to be deemed to be a decree in terms of Section 2(2) of the Code of Civil Procedure in view of the provisions of sub-section (2) of Section 26 of the Act, then the process or the proceedings which result in that decree have to be treated as in a suit. This is the true legal result if full effect is to be given to the 'deeming provision' contained in sub-section (2) of Section 26 of the Act. This proposition of law is well supported by the following observations made by Lord Asquith of Bishops-tone in East End Dwellings Co. Ltd., v. Finsbury Borough Council, 1952 AC 109, which observations were later approved by the Supreme Court in M. K. Venkatchalam, I. T. O. v. Bombay dyeing and Mfg. Co. Ltd., AIR 1958 SC 875(at p. 878):--
'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 is the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine certain state of affairs it does not say that having done so, you must cause or permit your imagination comes to the inevitable corollaries of that state of affairs.'
Further precedents are not lacking where the applications or petitions filed under different Acts have been treated as suits. In Balram Singh v. Dudh Nath, AIR 1949 All 100, an application filed under Section 12 of the U. P. Agriculturists ' Relief Act was treated to be a suit in view of the words 'in such other manner as may be prescribed' occurring in Section 26 of the Code of Civil Procedure. An application under Section 110 of the Motor Vehicles Act was treated to be a suit in Hayat khan v. Mangilal, AIR 1971, Madh Pra 140, while considering the question of applicability of Section 6 of the Limitation Act to those proceedings. Similarly, in S.P. Consolidated Engineering Co. (P) Ltd., v. Union of India, AIR 1966 Cal 259, an application under Section 20 of the Arbitration Act was considered to be a suit even though the proceedings instituted were considered not to have been instituted on the presentation of a plaint. Thus we have the least hesitation in holding that an application under Section 18 of the Act has to be treated as a plaint and the proceedings on its basis s the proceedings in the suit and the resultant award as a decree. In view of the above noted legal position, we accept the submission of the learned counsel for the claimant-petitioners to the effect that for purposes of determining or calculating counsel's fee while preparing the memo of costs, decree of this Court in a Land Acquisition case is to be treated as if passed in suit for specific property and the Rules contained in Chapter 6-I of Volume V relating to such a decree have to be resorted to for the above said purpose. It is wholly unsustainable that these decrees have to be treated as decrees in miscellaneous proceedings in terms of Rule 8 of the above-noted rules. In fact rule 8 only applies to miscellaneous proceedings in a suit prior to the passing of the decree and not to the decree itself.
11. In the light of the discussion above, the Office is directed to prepare the memo of costs in the light of the observations made above and the rules contained in Chapter 6-I, Volume V of the High Court Rules and Orders.
S.S. Sandhawalia, C.J.
12. I agree.
13. Order accordingly.