C.B. Capoor, J.C.
1. The question for consideration is as to whether the court-fee paid on the memorandum of appeal is sufficient.
2. The appellant is wife of the respondent. Land situate in village Jimjima belonged to the respondent. It had been assigned to the appellant in lieu of her maintenance. It was acquired by the Collector under the Land Acquisition Act. The compensation awarded by the learned Collector was apportioned between the respondent and the tenants of the said land. The appellant as the assignee of the said land claimed a right to be awarded the whole of the amount of compensation fixed by the learned Collector as the share of the respondent.
That dispute was referred by the learned Collector to the Court under Section 30 of the Land Acquisition Act. The Court has apportioned the disputed amount between the parties in equal shares and it is against that order that an appeal has been filed. The appellant has paid a fixed court-fee of Rs. 15/- under Article 17(iii), Schedule II to the Court-fees Act as applicable to Himachal Pradesh. The office has reported that ad valorem court-fee is payable under Section 8 of the aforesaid Act.
3. On behalf of the appellant it has been contended that the order under appeal was in the nature of a declaratory decree and as the amount of compensation awarded by the learned Collector for the acquisition of the aforesaid land is not in dispute, Section 8 was not attracted and a fixed court-fee was payable under Article 17(iii), Schedule II, referred to above. Reliance in support of the aforesaid contention has been placed upon a ruling of the Rajasthan High Court, reported in AIR 1957 Raj 275, Hakim Martin De Silva v. Martin De Silva II.
4. The first question that arises for decision is as to whether the memorandum of appeal under consideration is governed by Section 8 of the Court-fees Act.
5. There is a divergence of judicial opinion on that point. It has been held in AIR 1932 Cal 846, In re Ananda Lal Chakrabutty and AIR 1935 Lah 448, Ganesh Das v. Khanthu that the said section applies to a memorandum of appeal against an order of apportionment of compensation made on a reference under Section 18 or 30, Land Acquisition Act.
6. A contrary view has been taken in AIR 1929 Mad 223, Mahalinga Kudumban v. Theetharappa Mudaliar, in AIR 1921 Bom 325, Mangaldas Giridhardas v. Assistant Collector of Ahmedabad, in AIR 1957 Rai 275. supra and AIR 1935 Cal 243, Rash Behari Sanyal v. Gosto Behari Goswami. In the last mentioned case, AIR 1932 Cal 346 referred to above was not discussed.
In AIR 1935 Cal 243 there was also a prayer for investment of the compensation money under Section 32 of the Land Acquisition Act and the precise question arising in that case was somewhat different from the question that arose in AIR 1932 Cal 346. At this stage it may also be mentioned that in the Madras case referred to above Article 1, Schedule I, in AIR 1957 Raj 275, Article 17(iii), Schedule II and in AIR 4935 Cal 243, Section 7(iv)(c) of the Court-fees Act were held to be applicable.
7. Section 8 reads as 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.'
8. It was, if I may say so with respect, rightly pointed out by Rankin, C. J., in AIR 1932 Cal 346, supra that the aforesaid section is not a charging one and merely provides for the computation of the amount of court-fees and further that it contemplates a comparison between the amount awarded to the appellant and the amount claimed by him and not a comparison between the amount awarded to a number of persons and the amount claimed by one individual representing his individual interest. The words 'the amount of fee payable under this Act on a memorandum of appeal' indicate that some other provision of the Act has to be referred for ascertaining the amount of court-fee payable on the memorandum of appeal.
9. The words 'an order relating to compensation' as used in the section are of wide amplitude. Can it be said that an order apportioning the amount of compensation amongst the several interested persons is not an order relating to compensation? According to Clause (iii) of Section 11, the Collector has to apportion the compensation for the land among all the persons known or believed to be interested in it. Under Section 23 the damage sustained by the person interested as a result of the acquisition of the land has to be taken 'into consideration by the Court in determining the amount of compensation.
Section 25 provides that when an applicant has made a claim to compensation pursuant to any notice given under Section 9 the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11. Section 31 enjoins upon the Collector to tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award. According to Section 30 any dispute arising as to the apportionment of the amount of compensation or any part thereof settled under Section 11 or as to the persons to whom the same or any part thereof is payable is to be referred by the Collector to the decision of the Court.
10. The aforesaid provisions make it abundantly clear that an order whereby a person claiming to be interested in land is either awarded compensation or is not awarded compensation is an order relating to compensation and the answer to the poser must be in the negative.
11. The second question that has to be considered is as to whether Article 17(iii) of Schedule II to the Court-fees Act will apply to such a memorandum of appeal. The relevant portion of that Article runs as below:
''Plaint or memorandum of appeal in each of the following suits:-- (iii) to obtain a declaratory decree Fifteenwhere no consequential relief rupees.'is prayed.
The aforesaid article, it will have been noticed, inter alia governs a memorandum of appeal in a suit to obtain a declaratory decree where no consequential relief is prayed. There must, therefore, be a suit for claiming a declaratory decree simpliciter before the aforesaid Article can apply. No such suit was filed in the instant case. The reference under Section 30 of the Land Acquisition Act made by the learned Collector at the instance of the appellant cannot be considered to be a suit.
12. There is no provision in the Court-fees Act specifically providing for the payment of court-fees on a memorandum of appeal like the present and as such the residuary Article 1, Schedule I, will apply to it and ad valorem court-fee will be payable. I am, therefore, unable to follow, AIR 1957 Raj 275 referred to above and am in respectful agreement with the view expressed in AIR 1932 Cal 346, supra that a memorandum of appeal against I an order of apportionment of the amount of compensation under any law for the time being in force relating to acquisition of land for public purposes is governed bv Section 8. read with Article 1, Schedule I, Court-fees Act.
13. The appellant has, therefore, to pay court-fees on the value of the subject-matter in dispute. The deficiency in court-fees to be made good within 15 days. If the deficient court-fee is paid as indicated above, the appeal to be put up for admission, else it shall stand rejected.