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Kali Gopal Chatterjee Vs. T. Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.A.T. in A.F.O.D. No. 3955 of 1965
Judge
Reported inAIR1968Cal365,71CWN662
ActsCourt Fees Act, 1870 - Section 8 - Schedule - Articles 1, 11 and 17; ;Land Acquisition Act, 1894 - Sections 12 and 54
AppellantKali Gopal Chatterjee
RespondentT. Banerjee and ors.
Advocates:Nirmal Kumar Ganguli and ;Sakti Prosad Mukhopadhyay, Advs.;N.C. Chakrabartti, Senior Govt. Pleader
Cases ReferredDr. G. H. Grant v. State of Bihar.
Excerpt:
- orderbijayesh mukherji, j.1. this fiscal matter has been referred to me, for final decision, under sec-tion 5 of the court-fees act 7 of 1876.2. the facts which have led up to this reference need not be referred to further than as fellows:the special land acquisition judge, 24-parganas, seized of a reference under section 18 of the land acquisition act 1 of 1894, rejects the claim of the appellant to the entire sum of rs. 23, 912. 37 paise, the compensation, awarded by the land acq-uisition collector, for compulsory acquisition, for public purpose, of a certain land in mouza basudevpore, within the jurisdiction of baranagar police-station. the claim, so rejected, was on the foot of a purchase from one harinandan ram, said to be in possession of the acquisitioned land, as an under raiyat......
Judgment:
ORDER

Bijayesh Mukherji, J.

1. This fiscal matter has been referred to me, for final decision, under Sec-tion 5 of the Court-Fees Act 7 of 1876.

2. The facts which have led up to this reference need not be referred to further than as fellows:

The Special Land Acquisition Judge, 24-Parganas, seized of a reference under Section 18 of the Land Acquisition Act 1 of 1894, rejects the claim of the appellant to the entire sum of Rs. 23, 912. 37 paise, the compensation, awarded by the Land Acq-uisition Collector, for compulsory acquisition, for public purpose, of a certain land in mouza Basudevpore, within the jurisdiction of Baranagar police-station. The claim, so rejected, was on the foot of a purchase from one Harinandan Ram, said to be in possession of the acquisitioned land, as an under raiyat. Hence the appeal, valued at Rs. 23, 912. 37 paise, but stamped with a court-fee of Rs. 5 only. The Stamp Reporter, an officer whose duty it is to see that proper fee is paid, insists on ad valorem court-fees under schedule 1 to the Court-Fees Act. That comes to Rs. 1,320 minus Rs. 5 put in already. The appellant contends however that a fixed court-fee is leviable under schedule II, Article 11, prescribing a fee of Rs. 5, when the appeal is not from a decree or an order having the force of a decree, or at best, under Article 17 (iii), prescribing a fee of Rs. 20, when the object of the memorandum of appeal is to obtain a declaratory decree, with no prayer for a consequential relief.

3. Herein lies the difference between the Stamp Reporter and the appellant.

4. Thus, the only point that falls for determination is: what is the fee payable under the Court-Fees Act 7 of 1870 on a memorandum of appeal against order of the Land Acquisition Judge rejecting the claim of the appellant to Rs. 23, 912. 37 paise, the entire compensation awarded?

5. Without more, and as a matter of words, Section 8 of the Court-Fees Act affords a complete answer to the point. Here is a memorandum of appeal against an order of the Land Acquisition Judge -- an order which does relate to compensation under the Land Acquisition Act 1 of 1894, an Act for the time being in force for the acquisition of land for public purposes. Ergo, the amount of fee payable under the Court-Fees Act shall be computed according to the difference between the amount awarded and the amount claimed by the appellant. The amount awarded is nil. The amount claimed is Rs. 23, 912. 37 paise. The difference is necessarily Rs. 23, 912. 37 paise, upon which the amount of fee payable shall be computed: just the stand taken by the Stamp Reporter.

6. If such is the conclusion upon the plain words of the enactment, -- and the words in Section 8 are plain enough -- it is strengthened so much the more by the high authority of Rankin C. J. in a case, also a reference under Section 5, In re Ananda Lal Chakrabutty : AIR1932Cal346 . There a certain property in Diamond Harbour Road in the southwestern suburbs of Calcutta was compulsorily acquired. The zamindars, who were the appellants claimed compensation on the ground that portions of the property acquired were within the ambit of their zamindaries. The Calcutta Improvement Tribunal held that the property was revenue-free and no part of the mal lands of the zamindars, the appellants. Result: the Tribunal allotted the whole of the compensation to another, rejecting the claim of the zamindar-appellants to any portion thereof. In other words, the appellants there got nil, as the appellant before me has got nil.

7. Upon these facts the learned Chief Justice reminded himself

'that the Court-fees Act is really a taxing statute and that it is a principle to be applied as regards any charging Section in such a statute that the subject is not to be made liable except upon the plain words of the enactment.'

But is Section 8 in itself a charging section? His Lordship answered; 'No, it is not', and observed:

'Section 8, while not itself imposing any fee upon any one, provides a rule for computation of the fee payable under the Act in a certain class of cases'

Indeed, the words in Section 8, in this context, are:

'The amount of fee payable under this Act on a memorandum of appeal...shall be computed according to the difference between the amount awarded and the amount claimed by the appellant.'

Thus, the mandate of Section 8 is: 'compute so'. How will you make the computation you are asked to do? The amount awarded to the appellant is Y. The amount claimed by the appellant is X. So you know the difference which is X minus Y- And this is all you know. But you have still to compute the amount of fee payable. How? No better answer can be given than that given by his Lordship:

'Now, that Section (s. 8) standing in the text of the Act proceeds clearly on the assumption, otherwise in the Act there is a charge which is an ad valorem charge and is not a fixed charge: but for that assumption there would be nothing to compute, and the only way in which it can be said that there is a charge which has to be computed is that the charge is imposed by Article 1, Schedule I.'

There is thus one, and only one, way of making the computation. The way is the way shown in Article I, Schedule I. And so soon as Article I, Schedule I, which bears the caption: Ad valorem fees, is reached, the question I have posed: how to compute, answers itself, Compute the amount of fee payable on X minus Y in accordance with the ad valorem scale given there. Thus, Section 8 is not in itsself a charging section; but it leads you to an ineluctable charging article of a schedule prescribing ad valorem fees. To quote Rankin C. J. again:

'The purpose of Section 8 is to say that when you come to make a charge under Article 1, Schedule 1, the figure which is to be taken as the appropriate figure under column 2 is the figure to be computed by finding out the difference between the amount awarded to the appellant and the amount claimed by him.'

Towards the close of his judgment, his Lordship reiterates this conclusion in a way all his own, if I may say so, with respect

'Whatever may be the matter to be discussed, in the end, the point is: 'I have been given so much money as compensation for my interest and I claim by the appeal to get so much more.' Section 8 says that he is only to be charged upon the further amount that he is claiming by the appeal, that is, the amount of money which he says should be awarded to him in his own individual case in excess of the amount which in fact has been awarded.'

8. Such then is the judgment rendered on June 23, 1931. : AIR1932Cal346 in a reference under Section 5 of the Court-fees Act: Just the type of reference I am seized of now. Apply the law laid down so to the case in hand. The appellant before me says:

'I have been given nothing as compensation for the interest which is mine and I claim by the appeal to get Rs. 23,912.37.'He is, therefore, to be charged upon Rs. 23,912.37 paise that he is claiming by the appeal; just the amount he says should be awarded to him in his own individual case in excess of nil which in fact has been awarded -- that is to say, in lieu of the total rejection of his claim to the entire compensation.

9. Thus : AIR1932Cal346 is a distinct and strong decision against the appellant. But, it is said, Rash Behari Sanyal v. Gosto Behari Goswami : AIR1935Cal243 , is a decision the other way. Is it really? Let a scrutiny be made. To the facts first. A certain immovable property in Calcutta, sold by a widow, Bhu-ban Mohini Debi, to Gpsto Behari Goswami was compulsorily acquired by the Calcutta Improvement Trust, and a compensation of Rs. 6,339-6-0 was awarded to Gosto Behari, the owner then on the foot of the purchase. The three Sanyals claimed in the proceedings before the President of the Tribunal:

'We are the reversioners of Bhuban Mohini's husband and therefore entitled to the property or its sale-proceeds after her death. Pray, declare so: that we are in law the reversioners; do not hand over the compensation to Gosto Behari; but invest it instead under Section 32 of the Land Acquisition Act 1894.' The President held:

A. The sale by Bhuban Mohini was for legal necessity.

B. Gosto Behari had, therefore, acquired on absolute interest in the property sold and thereafter compulsorily acquired.

C. Ergo, he was entitled to retain for his own use the whole of the compensation awarded.

D. The Sanyals had no interest therein. Rash Behari Sanyal appealed, impleading, amongst others, the two other Sanyals as respondents.

10. Upon such facts, the question arose: what was the amount of fee payable on the memorandum of appeal? Costello J. towhom the matter was referred, again under Section 5 of the Court-Fees Act 1870, answered the question thus:

A. This is not a case of an appeal against an order relating to compensation under any Act (for the time being in force for the acquisition of land for public purposes).

B. The appeal is really against the decision of the President, Calcutta Improvement Tribunal, holding Bhuban Mohini's sale for legal necessity with all it means: Gosto Behari's absolute interest in the property, as also in the compensation awarded in lieu thereof, and declining to invest the money under Section 32 of the Land Acquisition Act.

C. A dispute as this between the Sanyals and Gosto Behari cannot in any sense be properly said to be concerned with the amount of compensation payable by reason of the compulsory acquisition of the property owned by Bhuban Mohini. Section 8 of the Court-fees Act cannot, therefore, govern it.

D. What the Sanyals had really prayed the Tribunal's President for was a declaration: that they were the reversioners, and some consequential relief: that the money be invested under Section 32 instead of being handed over to Gosto Behari, a purchaser from a limited owner.

E. Section 7(iv)(c) of the Court-fees Act may, therefore, very well rule the matter. But within it falls that unsatisfactory class of cases where the amount of fee payable is left to the discretion of the plaintiff himself, because of which 'the Sanyals as claimants and now as appellants could have assigned an arbitrary value to the proceedings'. The only question which could have been agitated by the Sanyals, had there been no sale by Bhuban Mohini, was the question of a declaration whether or not they were in fact the reversioners. Far better then to levy the fixed court-fee of Rs. 20 on the memorandum of appeal under Schedule 2, Article 17(iii) of the Court-fees Act, providing for just that for a memorandum of appeal, the burden of which is to obtain a declaratory decree, with nothing by way of a consequential relief.

11. Such then is the decision rendered by Costello J. in Rash Behari Sanyal's case on August 28, 1934 : AIR1935Cal243 a little more than three years after the decision of Rankin C. J. in In re Ananda Lal Chakrabutty on June 23, 1931 : AIR1932Cal346 . Do these two decisions speak in different voices on the same subject? The analysis I have made in the foregoing lines shows, they do not. Not that they do not speak in different voices. They do, one drawing Section 8 and the other repelling it. But, so they do, as they must, on different subjects. In : AIR1932Cal346 the subject is: 'The land compulsorily acquired is mine. Yet I have been given no compensation. Pray, give me so much down as that', just as the subject in the appeal before me is. This is plainly an appeal against an order, relating to compensation under an acquisitioning Act, caught as a matter of course by Section 8. In Rash Behari Sany-al's case : AIR1935Cal243 the subject is: 'I am the reversioner of the vendor Bhuban Mohini's husband. Yet the compensation for the land compulsorily acquired has not been invested under Section 32 of the Land Acquisition Act. Worse, it has been handed over to the vendee Gosto Behari. Pray, declare, I am what I claim to be: a reversioner; declare too, the sale by Bhuban Mohini was not for legal necessity. And then direct investment of the compensation under the law'. Plainly, this is not an appeal against an order relating to compensation; this is, on the other hand, an appeal, in essence, relating to a declaration sought for and refused by the Tribunal. No question of any amount awarded is at issue here; nor any question of any amount claimed. Necessarily, there is no question either, of the difference between the two. The question is the question of the declaration of the sale haying not been for legal necessity in the background of the Sanyals' claim before the Tribunal as reversioners. In sum, does the appellant Sanyal, on his behalf and on behalf of the non-appealing Sanyals, say: 'We, the Sanyals, have been given so little as compensation; we claim, by the appeal, so much more'? They do not. Indeed, they cannot, presumptive reversioners as they are, and, therefore. locus standi as they have not, to say so. Who knows, when Bhuban Mohini dies and succession opens, they may not even be living to participate in the succession as heirs: Where then, I ask, is the scope for Section 8? In vain, therefore, has reliance been placed on Rash Behari Sanyal's case : AIR1935Cal243 in support of the appellant's contention that Section 8 cannot rule the fiscal matter before me. which is quite different from the matter at issue there.

12. If I am right in the analysis I havemade of the two decisions of this court: In re, Ananda Lal Chakrabutty : AIR1932Cal346 and Rash Behari Sanyal's case : AIR1935Cal243 it is perhaps not right to say, as Bapna J. says, Sharma J. agreeing, and so I venture to observe with the greatest res-pect in Hakim Martin De Silva v. Martin De Silva comparing these two decisions:

'In a later case of the Calcutta High Court. : AIR1935Cal243 a single Judge of that Court took a different view.'

In a way, his Lordship is right. Costello J.'s view is certainly different from Rankin C. J.'s. But what is missed, (with the greatest respect again), is that the subject in the later case before Costello J. is different too, as has been my endeavour to point out, in the foregoing lines.

13. C. Thammayya Naidu v. C. Venka-taramanamma, 62 Mad LJ 541=(AIR 1932 Mad 438) cited on behalf of the appellant, was decided much in the same way. There, the Land Acquisition Judge ordered invest-ment of the compensation awarded, on the basis of his finding that the third claimant, a Hindu widow, was entitled only to a life-interest therein. And it was held by Wallace J., Cornish J. agreeing: the money which the widow never got nor could get over, possession of, having been in custodia legis, a mere declaration by the High Court, with a direction that it was no longer to be. held in trust for the widow but to be handed over to the appellant, was sufficient, and a court-fee was, therefore, payable as for a mere declaration. Rash Behari Sanyal's case : AIR1935Cal243 is thus a converse case. But the principle of the fiscal levy, both the litigations are governed by, appears to be the same.

14. This Madras decision does not, therefore, help matters forward for the appellant, on the very face of it. More, if the decision is gone into a little closely enough, it helps the appellant still less. 'A general principle' laid down by Wallace J., on the basis of an earlier decision of the Madras High Court in Mahalinga Kudumban v. Theetharappa Mudaliar 56 Mad LJ 387= (AIR 1929 Mad 223) is:

'..... where a successful claimantbefore the District Judge (surely qua Land Acquisition Judge) is declared entitled to immediate payment, the appeal against such an order would be an appeal praying for the recovery of the money from the successful claimant and would have to be valued ad valorem as a claim for money.'

A little later:

'No doubt, if any interest on the principal had been paid out to the widow, the petitioner, if he sought to recover that also, would have to pay court-fee ad valorem on that.....'

Apply this principle -- the principle of immediate payment to the case in hand. Itis there for all to see that the appellantbefore me seeks to recover Rs. 23, 912.37 hereand now from the successful claimants whohave been declared entitled to immediatepayment thereof. Apply this principle againto Rash Behari Sanyal's case : AIR1935Cal243 . Do you find there the possibility ofany immediate payment to the Sanyals? Youdo not. Even if the appeal had succeeded,there would have been the locking of themoney in investment. Thus, the Madrascase, if it be looked at a little closely, appears to be destructive of the very contention of the appellant, in support of which it is cited.

15. Section 8 of the Court-fees Act is sought to be kept away on another con- sideration. The award, it is said, is no more. Once the compensation has been determined and the amount deposited in court (as here) under Section 31. Sub-section (2), of the Land Acquisition Act, 1 of 1894, the conten-tion continuing, the award qua award hasspent itself; all that remains is a dispute between the persons interested and that too to the extent of their shares. Why, therefore, the contention concludes, mulct me in court-fee under Section 8? The answer is: whynot? No matter that the dispute is amongst the claimants inter se, and -- every disputeof this nature has to be so, -- here you are, claiming by the appeal-

The land compulsorily acquired is exclusively mine. But I have been awarded nothing. I claim Rs. 23,912.37.

So soon as you say that, Section 8 is there to greet vou thus: 'The difference between Rs. 23,912.37, the amount you claim, and nothing, awarded to you, is Rs. 23,912.37. The computation of the amount of fee payable under Schedule 1. Article 1. yields Rs. 1.320. You have paid Rs. 5 only. So, pay you must Rs. 1,315 more in court-fee'. Indeed, the plain words of the enactment could not have been plainer still. But, I am told, there are authorities which go the other way. Four such I have been referred to. I proceed to examine them, one by one.

16. T. B. Ramachandra Rao v. A. N. S. Ramachandra Rao, 49 Ind App 129-26 Cal WN 713=35 Cal LJ 545=(AIR 1922 PC 80) lays down no law on the Court-fees Act. On this consideration alone this Privy Council decision is not attracted here. Still, it must be noticed in some detail, with a view to appreciating the appellant's contention resting thereon. What it really lays down is the law on res judicata in the following facts and circumstances:

Under a deed of settlement of August 6, 1858, by one Ramajee Bavajee Pandit, who died on August 10 following, his adopted son christened Bavajee Pandit took half of his property and his two widows (one of whom was Thulja Boyee) took half and half Of the remaining half. In 1894 one acre and 74 cent of land so given, and then in possession of Thulja Boyee, was compulsorily acquired As usual, an award followed. Then the dispute arose as to the character and extent of the estate that Thulja took under the deed. 'If she took absolutely, the money could be divided forthwith; but if she took a limited interest, her share would have to be invested.' Such a dispute between the adopted son and the widow, the District Judge resolved by holding that the widow had an absolute estate. On appeal, the High Court took a different view:

'There being no indication of intention to give a large estate, .....the husband intended that a widow's estate only should pass.'

Therefore, investment of the money was ordered. Such was the decree made by the High Court on July 13, 1897 -- a decree which was appealable to the Board, but not appealed in fact.

This is one part of Ramachandra's case, AIR 1922 PC 80. Another part is: Thulja died in 1916, but after having executed wills and bequeathed all she had to the first respondent, one Ramachandra Rao. The adopted son died too, after the High Court decree, leaving behind him surviving two sons, the appellant (also Ramachandra) and his brother Jeevanna Rao. On July 12, 1916, these two sons instituted a suit against the claimants under Thulja's will, alleging that Thulja's was a limited Hindu widow's estate which she was incapable of alienating by will.

17. Was such a suit barred by res judicata? The Subordinate Judge decreed the suit, but was reversed by the High Court, only to be reversed by the Judicial Committee which directed restoration of the Subordinate Judge's decree. And why? To quote from the judgment of the Board delivered by Lord Buckmaster:

'.....the points argued as to the effectof the gift (the deed of settlement of August 6, 1858) in the present case are not now open to consideration, for in their Lordships' opinion the decision given on July 13, 1897, by the High Court at Madras is a clear and complete determination as between the parties to that suit and those claiming under them, which the present litigants cannot dispute.' pages 135 and 136 of 49 IA= (at pp. 82-83 of AIR).

18. An attempt was made, on behalf of the respondents, to ward off the application of res judicata, on the authority of an earlier decision of the Privy Council in the case of Rangoon Botatoung Co. Ltd. v. Collector, Rangoon, (1912) 39 Ind App 197 (PC) which struck down as incompetent an appeal from an award, by which the appellant was awarded Rs. 13,25,720 first by the Collector, and then by the Chief Court, qua Court where the matter was referred to, and also qua High Court to which an appeal was given by the Land Acquisition Act from the award of the Court so referred to, the appellant having been out for more. This led Lord Buckmaster to clarify the law on the point -- which I put in the form of following propositions, with a view to understanding it better:

A. Under the Land Acquisition Act there are two perfectly separate and distinct forms of procedure contemplated.

B. The first is that necessity for fixing the amount of the compensation and this is described as being an award.

C. The second is that when the parties proceed to litigate in the ordinary way to determine what their right and title to the property may be.

19. The second form of procedure is, and can only be, reached, when the first form is exhausted. In order to bring this distinction between the two procedures home, Lord Buckmaster observed:

'When once the award as to the amount has become final, all questions as to fixingof compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons togetkerentitled to the money is to place the money under the control of the Court.....' pages136 and 137 (of Ind App)=(at p. 83 of AIR) (Ibid).

And then the second form of procedure begins: the procedure under which the parties proceed to litigate in the ordinary way to determine their right and title inter se. Rangoon Botatoung Co. had nothing to do with this procedure. Given Rs. 13 lakhs odd by the award (not a decree), the Company wanted more and went up in second appeal to the Privy Council. But, under the then Land Acquisition Act,

'A special and limited appeal is given from the award of the Court (to which reference is made by the Collector) to the High Court. No further right of appeal is given. Nor can any such be implied': per Lord Macnaghten at page 200 of 39 Ind App).

The Ramachandras, however, in the case of 49 Ind App 129=(AIR 1922 PC 80) passed through the gamut of this second form of procedure when Thulja Boyee, the widow, and BaVajee Pandit, the adopted son, under whom the Ramachandras were claiming, had proceeded to litigate in the ordinary way to determine their right and title and when the High Court by its decree of July 13, 1897, had determined such right and title by holding that Thulja Boyee's was a widow's estate incapable of being alienated. Such decree of July 13, 1897, appealable to the Board, but not appealed from, having been 'a clear and complete determination between the parties', why go over it again in the suit of July 12, 1916, by Ramachandra and Jeevana claiming lust so: that Thulja Boyee had no power to dispose of the properties by will? The suing Ramachandra and Jeevanna were to get what they had prayed the Court for, as a matter of course. It is in this background, Lord Buckmaster observed:

'.....from the moment when the sum(compensation) has been deposited in Court under Section 31, Sub-section (2) the functions of the award have ceased; and all that is left is a dispute between interested people as to the extent of their interest. Such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of land was represented by a sum of money paid into Court.': page 137 of 49 Ind App=(at p. 83 of AIR).

20. And reliance is placed on just this passage, as also on the earlier one I have quoted too, to argue that the award as an award is at an end, keeping Section 8 of the Court-fees Act away.. The award is at anend no doubt, but only between the Collector and the persons interested: Section (sic) of the Land Acquisition Act. It may be far, very far, from its end (as here) among the persons interested. More of whicn hereafter in paragraph 23 infra. That apart, how an authority on res judicata can be pressed into service as an authority on the construction of a fiscal enactment is not clear to me. Do you or do you not claim in excess of what you have been awarded? Do you or do you not say: 'I have been awarded nothing, but I must get Rupees 23,000 odd which I claim, by the appeal'? If you do, you must pay the amount of fee found due, on computation, on the difference between the two. That is Section 8 which must receive effect.

21. The dispute about the relative shares of the parties -- a test Bapna J. goes by in Hakim Martin's case, (supra) -- must necessarily bulk large in almost all such cases where the appellant claims more than what he has got. But the moment he claims so, he must pay court-fees on the difference between the amount claimed and the amount awarded, of such sufficient amplitude is the wording of Section 8, from which there appears to be no escape. With respect, I cannot go the way Bapna J. has gone. More of which hereafter in paragraph 23 infra. With respect, I go instead the way Rankin C. J. has gone in : AIR1932Cal346 .

22. Nobodeep Chunder Chowdhury v. Brojendro Lall Roy, (1881) ILR 7 Cal 406 a case under the Land Acquisition Act, 10 of 1870, holds that it is the duty of the judge apportioning the compensation-money to decide the question of title between all persons claiming a share of the money. But on the question whether or not such decision will operate as res judicata, Pontifix J. holds, it will not, because where the amount may be extremely unimportant (Rs. 9 in one such case there), the parties may not think it worth their while to set up a claim to a share. Field J., however, thinks it unnecessary to decide what would be the effect of the former decision in the case under the Land Acquisition Act if the question of title had been put in issue and fairly tried. It is now well held that a former decision of a Land Acquisition Court determining the question of title in order to arrive at a finding on the question of apportionment of the compensation-money operates as res judi-cata, on general principles. See Raj Laksh-mi Dasi v. Banamali Sen : [1953]4SCR154 . More, 'the importance of a judicial decision is not to be measured by the pecuniary value of the particular item of dispute', to quote Lord Buckmaster again from Ramachandra's case, AIR 1922 PC 80 (supra). Be that as it may, Nobo-deep's case, (1881) ILR 7 Cal 406 has little to do with the problem before me. And I leave it at that.

23. The last case referred to, with a view to Retting away from Section 8, is Dr. G. H. Grant v. State of Bihar. : [1965]3SCR576 cited first on behalf of the State and then adopted on behalf of the appellant. It reveals a divergence of opinion. Subba Rao C. J. (then Subba Rao J.) holds that once an award has been filed in the Collector's office, after the whole gamut of the preliminaries has been gone through, it shall be final and conclusive and the Land Acquisition Officer shall not be able to reopen it in the teeth of the express provisions of Section 12 of the Land Acquisition Act by making a reference under Section 30. Shah J., for himself and Bachawat J., holds on the other hand that it is within the competence of the said officer to do so. In the midst of this diversity of opinion, there lies unity too on one aspect of the Act. The minority judgment says:

'But once the award is made, it becomes final and it can be reopened only in the manner prescribed, i.e., by way of reference under Section 18 of the Act.'

The majority judgment says:

'The Collector is by Section 11 authorised to make an award setting out the true area of the land, the compensation which, in his opinion, should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land.....'

Again,

'But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to adjudicate finally upon the title to compensation: that dispute has to be decided either in a reference under Section 18 or under Section 30 or in a separate suit.' So, the unanimity lies here: about the persons interested, inter se, the award is not at an end. Here, since the Collector's award has not been accepted by the appellant --and he is within his rights not to accept it -- the award, far from having been at an end, has traversed (as here) just a step after the beginning of the court proceedings, with only the first round of 'fight' over, before the court of first instance, viz., the Land Acquisition Judge. The second round awaits here. The third and last round may very well be in the Supreme Court, to which an appeal as of right has now been given by express enactment: Section 54 of the Land Acquisition Act. Then, and then only, the award amongst the persons interested will be at an end. How shall(?) then Section 8 of the Court-fees Act by referring to the observations in Ramachandra's case, AIR 1922 PC 80 in an alto-gether different context:

'..... all questions as to fixing ofcompensation are then at an end.'

or

'.....the functions of the award haveceased.....'

observations I have reproduced in their context in paragraph 19 ante? So, the Privy Council decision in Ramachandra's case, AIR 1922 PC 80 cannot take the appellant out of Section 8, though Bapna J. holds otherwise in Hakim Martin's case, (supra) -- a view, which, with great respect and in greater humility, I cannot bring myself to accept. I have stated why.

24. Section 8 is thus just the section, a distinct, clear and express provision, enacted for the instant memorandum of appeal, nowhere near which can come schedule II, Article 17 (iii) a general provision for a memorandum of appeal to obtain a declaratory decree with no consequential relief, or Article 11 thereof, another general provision for a memorandum of appeal from what may be called, in absence of a better expression, a 'non-decree'. Neither Article 17 (iii) nor Article 11 deals with a memorandum of appeal against an order relating to compensation under the Land Acquisition Act for the acquisition of land for public purposes. But Section 8 does. And the memorandum of appeal before me is for just that. I, therefore, answer so the question formulated in paragraph 4 ante: under Section 8 of the Court-fees Act, 7 of 1870, read with Article 1, Schedule 1 thereto, the fee payable on the memorandum of appeal is ad valorem on Rs. 23,912.37 paise -- the difference between the amount claimed and the amount awarded.

25. In the result, I direct that this appeal is not to be accepted until the furthercourt-fees of Rs. 1,315 demanded by theStamp Reporter have been paid. It is butfair that the appellant should have a reasonable time to put in the court-fees, Itherefore, direct further that the deficit beput in by July 31, 1967.


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