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M. Ramachandran and ors. Vs. State of Madras Represented by the Collector of Coimbatore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)2MLJ313
AppellantM. Ramachandran and ors.
RespondentState of Madras Represented by the Collector of Coimbatore
Cases ReferredJ. Pattammal v. Collector of Madras
Excerpt:
.....'order relating to compensation under any act. to put it in other words, the word 'order 'occurring in that article would be well within the definition of the said word contained in section 2 (14) of the code of civil procedure. then the position would be section 8 as well as article 11 of schedule ii as amended by the madras state would only relate to decisions by civil courts. therefore, i am clearly of the view that the word 'order' occurring in section 8 of the central act (as well as in section 51 of the madras act) is not to be understood as defined under section 2 (14) of the code of civil procedure. the punjab state ,in respect of an award under the punjab requisitioning and acquisition act, 1953, as well as a division bench of the delhi high court in manglal sen v......of schedule ii of the central act corresponds to article 3 of schedule ii of the madras act. that article (article 11 of schedule ii), without the amendment effected by this state, relates to memorandum of appeal when the appeal is not from a decree or order having the force of a decree. but article 11 of schedule ii as made applicable to this state reads thus:memorandum of appeal when the appeal is from an order inclusive of an order determining any question under section 47 or section 144 of the code of civil procedure, 1908, and is presented....if the word ' order ' occurring in section 8 of the central act is to be understood as defined under section 2 (14) of the code of civil procedure, or in other words, 'order' under section 8 of the central act should be a decision by a civil.....
Judgment:
ORDER

N.S. Ramaswami, J.

1. The question that arises is whether in this appeal under Section 11 of the Madras Requisitioning and Acquisition of Immoveable Property Act, 1956 (hereinafter referred to as the Requisitioning Act), ad valorem Court-fee is payable on the difference between the amount awarded and the amount claimed by the appellant as per Section 51 of the Madras Court fees and Suits Valuation Act, 1955 (hereinafter referred to as the Madras Act), or, whether only fixed Court-fee under Article 3 of Schedule II of the said Act is payable. Agricultural lands belonging to the appellant, whose appeal is yet to be numbered, have been acquired under the Requisitioning Act. Under Section 8 (1) (b) of the Requisitioning Act, the District Judge, Coimbatore, came to be appointed Arbitrator to determine the compensation payable in respect of the said lands. The Arbitrator has fixed the total compensation at Rs. 1,14,324-45 but the appellant claimed a total compensation of Rs. 5,82,222-00. The value of the Civil Miscellaneous Appeal shown in the memorandum of appeal is the difference between the abovesaid two sums, and that is, Rs. 4,67,897-55. But only a fixed Court-fee of Rs. 10 has been paid. No provision is quoted in the memorandum of appeal. However, it is claimed that such fixed Court-fee has been paid as per Article 3 of Schedule II of the Madras Act. The question is whether Section 51 of the Madras Act which contemplates payment of ad valorem Court-fee on the difference between the amount awarded and the amount claimed by the appellant, is applicable, or whether Article 3 of Schedule II is applicable. If Section 51 is applicable, then ad valorem Court-fee on the difference claimed, namely Rs. 4 lakhs odd, has to be paid in accordance with Schedule I. The contention of the learned Counsel for the appellant is that Section 51 of the Madras Act is not applicable and that, therefore, only fixed Court-fee under Article 3 of the Schedule II is payable.

2. Section 51 of the Madras Act is in the same terms as Section 8 of the.Central Court fees Act, 1870 (hereinafter referred to as the Central Act). A plain reading of Section 51 of the Madras Act would undoubtedly take in the present appeal. Section 51 says that the fee for the memorandum of appeal, against an order relating to compensation under any Act 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. In the present case, the Arbitrator appointed under the Requisitioning Act has given an award under Section 8 of that Act and under Section 9 of the said Act, there is a statutory obligation on the part of the authority authorised by the State Government to pay the said amount awarded, to the appellant herein. There can be no doubt that the award of the Arbitrator in this case is 'an order relating to compensation under any Act' as contemplated under Section 51 of the Madras Act.

3. The learned Counsel for the appellant, however, contended that what the Arbitrator made being only an award, it is in the-nature of an opinion and not an order. The learned Counsel contended that in the-award there is no command or direction, to the authority authorised by the State Government to pay the compensation determined, and that therefore the award cannot be construed as an order as contemplated under Section 51 of the Madras. Act. This is not tenable. 'Order' does not necessarily mean that it should contain either a direction or a command. In Ramanatha Aiyar's Law Lexicon (1940 Edition) at page 918, the word ' order ' is no doubt defined as a mandate or command, but it is also stated that the word ' order ' would mean judgment or conclusion. A Division Bench of the Madhya Pradesh High Court in Gangadhar v. N.A.M. Society : AIR1971MP16 , has held that the word 'order' means a decision or a finding. Even in the Code of Civil Procedure, the word ' order ' is defined only as a formal expression of any decision of a civil Court (which is not a decree). Of; course as per that definition which is. contained in Section 2 (14) of the Code of Civil Procedure, the formal expression of any decision must be by a civil Court.. The point to be noted now is that even as, per that definition, an order need not contain either a direction or a command but it need be a formal expression of any decision. In the present case, it is wholly untenable to contend that the award passed by the Arbitrator is only an expression of opinion. Undoubtedly it is a formal expression of a decision regarding the compensation payable to the appellant. Apart from this, as already seen, Section 9 of the Requisitioning Act makes it obligatory, on the part of the authority authorised by the State Government, to pay the compensation so determined by the Arbitrator. If Sections 8 and 9 of the Requisitioning Act are read together, one can even spell out a command or a direction to the authority concerned to pay the compensation determined by the Arbitrator. Even otherwise, as I said it is not necessary that there should be either a direction or a command, to make an award an ' order' as contemplated under Section 51 of the Madras Act. Further the last part of the section speaks of the difference between the amount 'awarded ' under the ' order ' and the amount claimed, for computing the Court-fee payable. That also shows that the word ' order ' takes in an award.

4. The learned Counsel for the appellant referred to the decision of Srinivasan, J., reported in Appavoo Mudaliar v. Special Deputy Collector , Madras (1964) 2 M.L.J. 487 and contended that by virtue of that decision it must be held that only fixed Court-fee is payable in the present case. That is again untenable. The case before Srinivasan, J., was under the Madras Slum Improvement Act. The question was whether in an appeal under Section 6 (4) (a) of the said Act, ad valorem Court-fee as contemplated under Section 51 or only fixed Court-fee under Article 3 of Schedule II of the Madras Act is payable. The learned Judge pointed out that the appeal under Section 6 (4) (a) of the said Act is not against any award, the stage of passing of an award having not yet been reached, and that therefore the latter part of Section 51 of the Madras Act which speaks about the difference between the ' amount awarded ' and the ' amount claimed ', does not arise. This decision would in no way help the appellant in the present case. While in the case before Srinivasan, J., the stage of passing of an award had not been reached by the time the appeal under Section 6 (4)(a) of the Madras Slum Improvement Act was filed, that is not the position in the present case. Undoubtedly, an award has been passed and the appeal relates to the difference between the amount awarded and the amount claimed. As a matter of fact, the judgment, of Srinivasan, J., proceeds on the basis that if an award has been passed and the appeal is for enhancement of the compensation, namely for the difference between the amount awarded and the amount claimed, Section 51 of the Madras Act would be attracted. To that extent this decision is against the contention of the learned Counsel for the appellant.

5. Then the learned Counsel, relying upon the decision of the Bombay High Court reported in Hirji Virji v. Government of Bombay : AIR1945Bom348 contends that the, 'order' referred to in Section 51 of the Madras Act should be one as denned under Section 2 (14) of the Code of Civil Procedure and the award in question being one not in conformity with the definition contained in Section 2 (14) of the Code of Civil Procedure, Section 51 of the Madras Act is not applicable. As already seen, Section 2 (14) of the Code of Civil Procedure, defines the word ' order ' as a formal expression of any decision of a civil Court which is not a decree. I have already pointed out that the award in this case is undoubtedly a formal expression of a decision which is not a decree. But it is not by a civil Court. The District Judge, Coimbatore who was appointed Arbitrator under Section 8 of the Requisitioning Act was not functioning as a civil Court while he passed the award. Even though the award passed in this case is a formal expression of a decision which is not a decree, as contemplated under Section 2 (14) of the Code of Civil Procedure, it does not come within the definition of the word ' order ' contained in that section, merely because it is not a decision by a civil Court. Therefore if the contention of the learned Counsel that the word 'order' contained in Section 51 of the Madras Act must be construed to be one as defined under Section 2 (14) of the Code of Civil Procedure, it means that Section 51 of the Madras Act is applicable only to appeals against decisions of a civil Court. Needless to say that the Madras Act as well as the Central Act are not confined to Court-fees payable on decisions arising out of disputes on civil Courts. It is true that the word 'order' is not defined in the Madras Act (as well as the Central Act) but that does not mean that one should look to the definition contained in the Code of Civil Procedure, especially when the section does not use the word ' order ' simplicitor, but used the expression ' order relating to compensation under any Act.'

6. The argument that the word ' order ' occurring in Section 51 of the Madras Act should be understood as per the definition contained in Section 2 (14), Code of Civil Procedure, or in other words, that Section 51 applies only to appeals against decisions of a civil Court and that in the present case, the decision not being of a civil Court, only fixed Court-fee is payable can be shown to be untenable by a mere reading of Section 8 of the Central Act and Article 11 of Schedule II of the said Act as amended in Madras. The Madras Act is of the year, 1955. Prior to the passing of the Madras Act, the Central Act was applicable to this State. Section 8 of the Central Act is in the same terms as Section 51 of the Madras Act. Article 11 of Schedule II of the Central Act corresponds to Article 3 of Schedule II of the Madras Act. That Article (Article 11 of Schedule II), without the amendment effected by this State, relates to memorandum of appeal when the appeal is not from a decree or order having the force of a decree. But Article 11 of Schedule II as made applicable to this State reads thus:

Memorandum of appeal when the appeal is from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908, and is presented....

If the word ' order ' occurring in Section 8 of the Central Act is to be understood as defined under Section 2 (14) of the Code of Civil Procedure, or in other words, 'order' under Section 8 of the Central Act should be a decision by a civil Court, there is no reason why the word ' order ' occurring in Article 11 of Schedule II as amended in this State, should not also be understood only as a decision of a civil Court. In fact, that Article specifically includes an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, which means, that Article covers a decision by the civil Court. To put it in other words, the word ' order ' occurring in that Article would be well within the definition of the said word contained in Section 2 (14) of the Code of Civil Procedure. Then the position would be Section 8 as well as Article 11 of Schedule II as amended by the Madras State would only relate to decisions by civil Courts. There is no scope for excluding only Section 8 and applying Article 11 of Schedule II in respect of appeals against decisions not by a civil Court. Therefore, I am clearly of the view that the word 'order' occurring in Section 8 of the Central Act (as well as in Section 51 of the Madras Act) is not to be understood as defined under Section 2 (14) of the Code of Civil Procedure.

7. In Hirji Virji v. Government of Bombay : AIR1945Bom348 , referred above, Wadia, J., held that only fixed Court-fee is payable on the appeal against the award of the Arbitrator under Section 19 of the Defence of India Act on two grounds namely, (1) that the award is not a decree or an order having the force of a decree and that therefore Article 11 of Schedule II of the Central Act would apply: and (2) that it is not an order as contemplated under Section 8 of the Central Act. The learned Judge's view is that the word ' order ' occurring in Section 8 should be understood as defined in Section 2 (14) of the Code of Civil Procedure.

8. For reasons discussed supra, with respect, I am unable to agree with the view of Wadia, J., of the Bombay High Court regarding the second ground, namely, the one relating to the interpretation of the word ' order ' occurring in Section 8 of the Central Act (Section 51 of the Madras Act). No doubt the Nagpur High Court in Crown v. Chandra Bhanlal A.I.R. 1957 Nag. 8, in respect of an award under Section 19 of the Defence of India Act, a Division Bench of the Punjab High Court in Kanwar Jagat v. The Punjab State , in respect of an award under the Punjab Requisitioning and Acquisition Act, 1953, as well as a Division Bench of the Delhi High Court in Manglal Sen v. Union of India A.I.R. 1970 Delhi 4, in respect of an award under the Re settlement of Displaced Persons (Land Acquisition) Act, 1948, have taken a similar view as the Bombay High Court. But in Satya Charan v. State of West Bengal : AIR1959Cal609 , the decision of the Bombay High Court in Hirji Virji v. Government of Bombay : AIR1945Bom348 , has been dissented from. That decision is in respect of an award under the Requisitioning and Acquisition of Immovable Property Act, 1952 and the learned Judge of the Calcutta High Court, after extensively quoting the observations of Wadia, J., of the Bombay High Court observed in paragraph 22 at page 613 as follows:

With very great respect, I dissent from the Judgment of Wadia, J., Section 8 of the Court-fees Act does not use the expression 'order' simpliciter but uses the expression ' order relating to compensation under any Act for the time being in force.' (underlining herein by myself). That being so, there is no reason why the expression ' order ' in Section 8 of the Court-fees Act must be treated as an order under Section 2 (14), Civil Procedure Code.

The same Court (The Calcutta High Court) in an early case reported in Ananda Lal Chakrabutty, In re : AIR1932Cal346 , has held that in an appeal from an award from the Calcutta Improvement Tribunal, the Court-fee payable on the memorandum of appeal is governed by Section 8 of the Court-fees Act (Central Act) and ad valorem Court-fee under Article 1 of Schedule I is payable.

9. A Division Bench of the Andhra Pradesh High Court in Lakshminarayana v. Revenue Divisional Officer : AIR1968AP348 , which is a case under the Requisitioning and Acquisition of Immovable Property Act, has taken a similar view. They have dissented from the judgment of the Bombay High Court, the Division Bench of the Punjab High Court and also that of the Allahabad High Court reported in Debi Din v. Secretary of State : AIR1939All127 and held that the award passed under the Requisitioning and Acquisition of Immovable Property Act, 1952, is an order coming within the meaning of Section 8 of the Court fees Act (Central Act) and that the appellant would have to pay ad valorem Court-fee under Article 1 Schedule I of the Court-fees Act. With respect, I agree with the view of the Andhra Pradesh High Court and that of the Calcutta High Court.

10. In the present case, I am not concerned with the correctness or otherwise of the first ground relied on by Wadia, J., in Hirji Virji v. Government of Bombay : AIR1945Bom348 . There the learned Judge said that the award (in that case by the Arbitrator under Section 19 of the Defence of India Act) is not a decree or an order having the force of a decree and that therefore Article 11 of Schedule II of the Central Act would apply. As already noticed the said Article with the Madras Amendment is in different terms. That Article with the Madras Amendment applied to a memorandum of appeal when the appeal is from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908. It does not apply to a 'a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree'.: The corresponding provision in the Madras Act (Article 3 of Schedule II) also does not refer to a 'memorandum of appeal when the appeal is not from a decree or an order having the force of a decree'. On the other hand, the said Article in the Madras Act relates to a ' memorandum of appeal from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908, and not otherwise provided for '. Therefore, the question whether the award in this case is a decree or an order having the force of a decree does not arise. Under Article 3 of Schedule II of the Madras Act, the provision is only in respect of an appeal from an. ' order..........not otherwise provided for '. As Section 51 of the Madras Act corresponding to Section 8 of the Central Act does not provide for an appeal from ' an order would have no application. The simple question is whether the award in this case is an ' order relating to compensation ........ for the acquisition of property ' as contemplated under Section 51, or it is an ' order ........ not otherwise provided for' as contemplated under Article 3 of Schedule II of the Madras Act. I am unable to understand as to why the award should be understood as an ' order .... not otherwise provided for', in the face of Section 51. The appeal in this case would squarely fall under Section 51 of the Madras Act and the Court-fee payable is under Article 1 of Schedule I which prescribes not only the fee for plaints, written statement pleading a set-off or counter claim but also for a memorandum of appeal presented to any Court.

11. Regarding the question of payment of Court-fee, there is no distinction between an appeal relating to an award under the Land Acquisition Act and an appeal in respect of an award relating to compensation under any other Act. Admittedly ad valorem Court-fee is payable on an appeal presented by the claimant in respect of the difference between the amount awarded and the amount claimed by him, if the award is under the Land Acquisition Act. Such payment of ad valorem Court-fee is because of the provision contained in Section 8 of the Central Act and the corresponding provision in the Madras Act, namely Section 51 therein, and not because the award under the Land Acquisition Act is deemed to be a decree as provided under Section 26 (2) of the Land Acquisition Act. It must be remembered that Sub-section (2) of Section 26 of the Land Acquisition Act had been inserted only by the Amending Act (XIX of 1921). This provision so introduced by the Amending Act says that every award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2) and Section 2 Clause (9) respectively of the Code of Civil Procedure, 1908. The abovesaid Sub-section (Sub-section (2) of Section 26) had been introduced by the 1921 amendment not for the purpose of levying ad valorem Court-fee on a memorandum of appeal against the disallowed portion of the claim. The introduction of the abovesaid sub-section was consequential to the amendment of Section 54, by the same Amending Act, namely Act XIX of 1921. Section 54 as it originally stood read thus:

Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or any part of the award in any proceeding under this Act.

Under that provision, an appeal against the award lay to the High Court, but there could be no second appeal and there was also no right of appeal to the Privy Council. The Privy Council held in Rangoon Butaun and Company Limited v. The Collector of Rangoon (1912) 39 I.A. 197 : (1912) 23 M.L.J. 276 : I.L.R. (1912) Cal. 21 : (1912) 16 I.C. 188.

As Lord Bramwell observed in the case of Sanback Charity Trustee v. North Staffordshire Railway Company (1877) L.R. 3 Q.B.D. 1, an appeal does not exist in the nature of things. A right of appeal from any Tribunal must be given by express enactment. A special and limited appeal is given by the Land Acquisition Act from the award of the Court to the High Court. No further right of appeal is given. Nor can any such right be implied .... Their Lordships cannot accept the argument or suggestion that when once the claimant is admitted to the High Court he has all the rights of the ordinary suit or including the right to carry an award made in an arbitration as to the value of the land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction.

Further, as Sections 26 and 54 stood originally, the award was not capable of being executed. In order to remove the anomaly the award under the Land Acquisition Act was placed on a par with a decree as defined under Section 2 (2) of the Code of Civil Procedure. Therefore the fact that an award under the Land Acquisition Act is deemed to be a decree within the meaning of Section 2 (2) has nothing to do with the question of proper Court-fee on a memorandum of appeal in respect of the difference between the amount claimed and the amount awarded. Ad valorem Court-fee is paid on a memorandum of appeal filed by a claimant under the Land Acquisition Act only under Section 8 of the Central Act or under Section 51 of the Madras Act, as the case may be, read with Article 1 of Schedule I.

12. A Full Bench of this Court in J. Pattammal v. Collector of Madras : AIR1972Mad158 has proceeded on the footing that ad valorem Court-fee is payable on a memorandum of appeal in respect of the difference between the amount claimed and the amount awarded under the Land Acquisition Act, under Section 51 of the Madras Act. Of course, the present question did not directly arise in that case. There, the only point was whether Court-fee is payable on interest on the difference between the amount claimed and the amount awarded. But as I said, the Full Bench has proceeded on the footing that in respect of the difference ad valorem Court-fee payable is under Section 51 of the Madras Act (and not because the award is deemed to be a decree as stated in Section 26 (2) of the Land Acquisition Act).

13. Lastly the learned Counsel for the appellant referred to In re, Bandapudi Venkatarathnam : AIR1941Mad639 in support of his contention. That was a case of an appeal filed under Rule 9 of the Rules framed under the Madras Agriculturists' Relief Act (IV of 1938). The said Rule stated that the order of the Court declaring the amount of the debt under Rule 7 thereof, shall be 'subject to appeal and second appeal as if it were a decree in an original suit '. Because of this provision, which has stated that the order is subject to an appeal and second appeal as if it were a decree, ad valorem Court-fee was claimed on the appeal memo presented under that Rule. A Division Bench of this Court negatived the contention of the Revenue with the following observations occurring in column 2 of page 640:

It is contended that if this order is to be treated for purposes of appeal as if it were a decree, it must necessarily attract the provisions of the Court-fees Act for appeals from decrees. We are unable to accept this contentions in the absence of any specific provision in the Rules attracting the provisions of the Court-fees Act governing appeals from decrees. The Court-fees Act being a fiscal statute, we cannot in the presence of ambiguity guess at the meaning of the authority which enacts the Rules and draw from the presumed intentions of that authority an inference which is adverse to the party who has to pay the tax.

The Division Bench further pointed out that Rule 11 of Schedule II as amended in Madras relates to a memorandum of appeal when the appeal is from an order inclusive of an order determining any question under Section 47 or Section 144, Civil Procedure Code, and that there is nothing in the said Article which would exclude the applicability of the same to the case before them namely an appeal under Rule 9 of the Rules framed under the Madras Agriculturists Relief Act. I am unable to see how this decision has any bearing on the present case. Ad valorem Court-fee is claimed on the memorandum of appeal in the present case not because the award is a decree or deemed to be a decree or should be treated as if it were a decree but because it is an order relating to compensation. The question is whether Section 51 of the Madras Act corresponding to Section 8 of the Central Act is applicable or not. I have already sufficiently indicated that the section does apply as the award by the Arbitrator is an ' order relating to compensation '. Obviously that section has nothing to do with the appeal under Rule 9 of the Rules framed under the Madras Agriculturists Relief Act which was before the Division Bench in In re, Bandapudi Venkatarathnam : AIR1941Mad639 . Therefore that decision has no bearing at all to the present case.

14. The appellant has to pay ad valorem Court-fee on the appeal memorandum according to the value of the appeal shown therein. Return the appeal memo giving 4 months time to pay Court-fee.


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