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Purshotam Dass Vs. Jaishi Ram - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 9 of 1974
Judge
Reported inAIR1978HP51
ActsHimachal Pradesh Court Fees Act, 1968 - Section 8 - Schedule - Articles 1 and 13; ;Land Acquisition Act, 1894 - Sections 18, 30 and 54
AppellantPurshotam Dass
RespondentJaishi Ram
Appellant Advocate P.N. Nag, Adv.
Respondent Advocate M.G. Chitkara, Adv. General and; P. Malhotra, Adv.
Cases ReferredA. Mahalinga Kudumban v. Theetharappa Mudaliar
Excerpt:
- .....as regards the apportionment of the compensation which is to be awarded for the acquisition of the land in question. the second schedule of the himachal pradesh court-fees act is under section 3 of the said act, and article 13 (iii) thereof states that in case of a plaint or memorandum of appeal in a suit to obtain a declaratory decree, where no consequential relief is prayed, a fixed court-fee of rs. 19.50 is required to be paid. the contention of the appellant is that it is this article 13 (iii) which is applicable to the facts of this case because the appellant's claim is in fact for a declaration as to the status of the parties. it is contended that the learned district judge has made the apportionment in question after accepting the respondent's claim that he is entitled to the.....
Judgment:

T.U. Mehta, J.

1. This is an appeal preferred under Section 54 of the Land Acquisition Act against the order passed by the Additional District Judge, Mandi Camp at Dharamsala in a land reference No. 50 of 1971 made to him under Section 30 of the Land Acquisition Act. By his order under appeal the learned Additional District Judge has apportioned the compensation for acquisition of the land in dispute between the present appellant and the respondent on the basis that the respondent is a non-occupancy tenant over the acquired land. The appellant claims that the respondent is not holding any non-occupancy tenancy right in the land and the whole of the compensation should have been awarded to him without any apportionment. The office took objection as regard the court-fee paid by the appellant in this appeal. The appellant has paid Court-fee of Rs. 19.50 under Article 13 (hi) of the Second Schedule attached to the Hima-chal Pradesh Court Fees Act, 8 of 1958. The office objection is that the appellant is liable to pay an ad valorem Court-fee under Article 1 of the First Schedule to this Act as read with Section 8 thereof. This objection as regards the Court-fee came up for consideration before my learned brother who after hearing the learned advocates of the parties has made this reference in view of the conflicting decisions on the question. The question which is referred to the larger Bench is as under :--

'Whether an appeal under Section 54 of the Land Acquisition Act, wherein the only dispute between the parties is only to the apportionment of the compensation has to be stamped with a Court-fee as contemplated under Section 8 of the Court-fees Act or the case for apportionment is governed under Schedule II Article 17 (iii) of the Court-fees Act.'

This question refers to Article 17 (iii) of the Second Schedule of the Central Court-fees Act (VII of 1870). But as a matter of fact this matter is governed by the Himachal Pradesh Court-fees Act, 8 of 1968, the relevant Article of the Second Schedule of which is, as already stated above, Article 13 (iii). Therefore, Article 13 (iii) of the Second Schedule of the Himachal Pradesh Act is required to be read in the question which is referred to us,

2. It is obvious that the dispute between the parties is as regards the apportionment of the compensation which is to be awarded for the acquisition of the land in question. The Second Schedule of the Himachal Pradesh Court-fees Act is under Section 3 of the said Act, and Article 13 (iii) thereof states that in case of a plaint or memorandum of appeal in a suit to obtain a declaratory decree, where no consequential relief is prayed, a fixed court-fee of Rs. 19.50 is required to be paid. The contention of the appellant is that it is this Article 13 (iii) which is applicable to the facts of this case because the appellant's claim is in fact for a declaration as to the status of the parties. It is contended that the learned District Judge has made the apportionment in question after accepting the respondent's claim that he is entitled to the rights of an occupancy tenant in the land. This question obviously involves the determination, of the status of both the contesting parties with respect to the acquired land, and since the stand of the appellant is that he is the sole owner of the acquired land and as such he is entitled to the whole amount of compensation without any apportionment, his claim eventually amounts to obtaining a declaration as regards his status. If this claim about the appellant's status is eventually allowed by the Court, then the award of the whole amount of the compensation in his favour would be merely a necessary consequence of this declaration and, therefore, according to the learned Counsel for the appellant, the matterfalls within the provisions of Article 13 (iii) of the Second Schedule which requires a fixed court-fee of Rs. 19.50. It is thus contended on behalf of the appellant that the court-fees paid in this appeal are proper.

3. As against this, the contention of the respondent as also of the learned Advocate-General, who has appeared on behalf of the State, is that Article 13 (iii) of the Second Schedule of the Act has no relevance to the facts of this case because the matter is governed purely by Section 8 of the Himachal Pradesh Court-fees Act which is in the following terms :--

'8. Fee on Memorandum of appeal against order relating to compensation.--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.'

4. Relying upon this section the contention of the learned counsel for the appellant as also the learned Advocate-General is that what the appellant proposes to claim by this appeal is the whole amount of compensation without any apportionment and, therefore, he wants to claim a greater amount of compensation than what is awarded to him by the learned District Judge. It was pointed out, therefore, that the appellant has to pay under the provisions of the aforesaid quoted Section 8, the court-fee on the difference between the amount of compensation awarded already to the appellant, and the amount now claimed by him in this appeal. The respondent, therefore, points out that the court-fee on this difference should be computed in accordance with Article 1 of the First Schedule of the Act which contemplates the payment of the ad valorem court-fees.

5. It is obvious by reference to Article 13 of the Schedule II of the Act that it applies to the payment of court-fees on plaint or memorandum of appeal in certain types of suits. One of the types of suits contemplated by this article is a suit to obtain 'a declaratory decree'. The first question which would, therefore, arise to be considered is whether the proceedings under Section 30 of the Land Acquisition Act initiated before a District Court are the proceedings in natureof a suit, and the relief which the District Judge is expected to give in such pleadings would amount to 'a declaratory decree'. This question admits a good deal of debate. But we find that it is not necessary to enter into this de-bate in view of the plain meaning and construction which could be attached to the provisions of the aforesaid quoted Section 8 of the Act.

6. In our opinion the provisions contained in Section 8 of the Act are specific provisions which would apply to any memorandum of appeal which is filed against an order 'relating to compensation'. If we analyse the provisions of Section 8, we find that it stipulates the following ingredients, namely :--

(1) There must be a memorandum of appeal;

(2) That memorandum of appeal should be against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purposes; and

(3) There should also be a claim which involves difference between the amount awarded and the amount claimed by the appellant in the appeal. If all these three ingredients are satisfied then the question would obviously fall within the ambit of Section 8. So far as the first two ingredients are concerned there is absolutely no dispute that they are completely satisfied in this case. The question, therefore, is whether third ingredient is satisfied or not.

7. Now so far as the third ingredient is concerned the contention of the learned Advocate of the appellant is that the expression 'amount awarded' connotes the award of the total amount of compensation and not the award of a portion of the compensation which is ordered to be given for the acquisition of the land. It was accordingly pointed out that the expression 'difference between the amount awarded and the amount claimed by the appellant', which is found in the concluding portion of Section 8, suggests a case wherein a claimant claims a higher amount of total compensation which is awarded for the acquisition of the land in question and not a higher amount of apportionment out of the total amount of compensation so awarded. For this proposition the learned counsel for the appellant has put reliance upon the decision given by Bapna J. of the Rajasthan High Court in Hakim Martin De Silva v. Martin DaSilva II reported in AIR 1957 Raj 275. In this Rajasthan case there was a reference under Section 30 of Jaipur Land Acquisition Act, and in that reference the District Judge concerned passed an order apportioning compensation among several claimants. One of the claimants, who had claimed that he alone was the owner of the property acquired, filed an. appeal under Section 54 of the Rajasthan Act against the decision of the District Judge claiming the entire amount for himself. He, however, paid an amount of fixed court-fee on the memorandum of appeal, as is done by the present appellant in the case before us. The Jaipur Bench of the Rajasthan High Court referred to certain decisions and was of the opinion that these decisions were conflicting and it was difficult to reconcile the conflicting views. The said Bench thereafter relied upon some of the observations of the Privy Council in T. B. Ramachandra Rao v. A. N. S. Ramachandra Rao reported in AIR 1922 PC 80 and came to the conclusion that what the appellant wanted was merely a declaration that he alone was the owner of the property which was acquired and, therefore, Section 8 of the Court-fees Act was not attracted. This will be clear from the following observations made by Bapna J. who spoke for the said Bench :--

'What is in dispute in the present appeal is the relative shares of the parties in the house property in dispute. The appellant wants a declaration that he alone was the owner of the property which had been acquired. The apportionment will follow the declaration as a matter of course. The money is still in the hands of the Court, and his purpose would be fully served by a mere declaration of his right, title or interest in the property which has been acquired. In our opinion Section 8 of the Court-fees Act is not at all applicable to a case of this nature for the amount awarded as compensation for the property acquired is not at all in dispute. For a relief of declaration of that nature Schedule II Article 17 Clause (iii) would, in our opinion, be applicable.'

8. The above view taken by the Rajasthan High Court is not shared by the other High Courts in India. But before taking up for our consideration these other decisions of the other High Courts it will be proper to point out that the reasonings adopted by theRajasthan High Court does not appeal to us. With due respect to the learned Judges, we find that the expression 'the amount awarded' found in the last portion of Section 8 of the Court-fees Act does not connote the idea of the award of total compensation for the acquired land. Under the scheme of the Land Acquisition Act every interested person is entitled to an award of compensation which is commensurate with his interest, and therefore, when there are more than one interested person, whatever amount is awarded to each of the interested persons is the 'amount awarded' under the Act. Under the circumstances, the expression 'amount awarded' cannot be limited to the award of total amount of compensation for the acquired land. So far as each of the claimants is concerned, the amount awarded is the sum which is given to him in compensation for the extinguishment of his interest. Therefore, we do not find anything in Section 8 of the Court-fees Act to indicate that the expression 'amount awarded' should be confined only to the total amount of compensation awarded to all the claimants.

9. The learned Judges of the Rajas-tan High Court have relied upon some of the observations made by the Privy Council in the aforesaid referred case of the T. B. Ramchandra Rao v. A. N. S. Ramchandra Rao reported in AIR 1922 PC 80. We have perused this decision but we find that this decision does not deal with the question with which we are concerned in this reference. The question which was before their Lordships in the Privy Council case, was whether a certain judgment which arose out of the proceedings under the Land Acquisition Act, 1 of 1894 was res judicata or not, and it was on this question that the Privy Council observed that when once the award as to the amount has become final, all questions as to fixing of compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons together entitled to the money is to place the money under the control of the Court, and the parties then could proceed to litigate in the ordinary way to determine what their right and title to the property might be.

10. These observations, in our opinion, have nothing to do with the payment of the court-fees nor do they show that Section 8 of the Court-fees Act does notgovern the case of apportionment of the total compensation awarded between the rival claimants. With due respect to the learned Judges of the Rajasthan High Court, therefore, we are of the opinion that the Privy Council decision relied upon by them has got no relevance to the facts of the present case.

11. Moreover, when a Court decides a reference either under Section 18 or under Section 30 of the Land Acquisition Act, it does not give any declaration. Its function is limited, and is confined to the fixation of the quantum of compensation and to the apportionment of the same amongst the rival claimants. If while discharging this function the Court is called upon to decide some incidental questions such as the legal status of the contesting parties, the said decision is obviously for achieving the main purpose of fixing the quantum and apportioning the same. Therefore, a decision on such incidental questions cannot convert the nature of the proceedings. It is, therefore, not correct to say the reference under Section 30 of the Land Acquisition Act partakes the character of a declaratory suit simply because the Court has to make an incidental inquiry about the legal status of the rival claimants.

12. We find that this exact point has been dealt with by various High Courts in India. The earliest decision on this point is found to be in the Calcutta case in re: Ananda Lal Chakrabutty (AIR 1932 Cal 346), wherein Rankin, C. J. has observed that Section 8 of the Court-fees Act, dealing with the amount of fee payable makes a comparison between two things--the amount awarded, and the amount claimed by the appellant. He has further observed that it appears to be reasonably clear that the comparison can only be between the amount awarded to the appellant and the amount claimed by the appellant, and there can be no comparison between the amount awarded to a number of persons and the amount claimed by one individual representing his individual interest. Rankin, C. J. has further observed in this decision that where the appellants have been given nothing by way of compensation, and they claim a substantial sum, the amount of court-fees is to be computed according to the amount of their claim. Ultimately it was held that in such cases the court-fees are required to be paid under Schedule I, Article 1 of the Court-fees Act read with Section 8 thereof.

13. The learned Judges of the Rajas-than High Court have observed in the above referred case of Hakim Martin De Silva, AIR 1957 Raj 275 (supra) that subsequently in the case of Rash Behari Sanyal v. Gosto Behari Goswami reported in AIR 1935 Cal 243, the same High Court of Calcutta had taken a view which is different from the view as taken by Rankin C. J. We have, therefore, also referred to this subsequent case of Rash Behari Sanyal v. Gosto Behari Goswami (supra). But with due respect to the learned Judges of the Rajasthan High Court we find that the subsequent case does not lay down any view which is contrary to the view taken by Rankin C, J, in the case of Ananda Lal, As a matter of fact in this subsequent case of Rash Behari Sanyal the point was totally different because it was a case in which the question at issue was whether or not a sale of the acquired land which had been made by a lady named Bhuban Mohini Debi of certain immovable property in Calcutta, had been made by her for legal necessity and so passed an absolute right in the property to the purchaser who was Gosto Behari Goswami. The matter arose particularly in connection with an appeal sought to be filed by one Rash Behari Sanyal under Section 3 (1) Calcutta Improvement (Appeals) Act, 1911, from a decision of the President of the Calcutta Improvement Tribunal by virtue of provisions of Section 77 (1) (b), Bengal Act 5 of 1911. Dealing with the question Costello, J. has made the following observations which make it quite clear that the point involved therein was entirely different. He says :--

'I may say at once that, in my opinion, this is not a case of an appeal against an order relating to compensation under any Act. The appeal is really against the decision of the President of the Calcutta Improvement Tribunal whereby he held that the sale by Bhuban Mohini was made for legal necessity and therefore Gosto Behari Goswami had acquired an absolute interest in the property and so was entitled to retain for his own use the whole of the compensation money which had been awarded, and the Sanyals had no interest whatever in that money.'

Then proceeding further Costello, J. observed as under :--

'It is quite clear, in my opinion that the dispute between the Sanyals andGosto Behari Goswami 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.'

These observations make it clear that the decision given by Calcutta High Court in the subsequent case of Rash Behari Sanyal (supra) was altogether on a different point. As a matter of fact the Calcutta High Court has explained this decision given in Rash Behari Sanyal's case at great length in Kali Gopal Chatterjee v. T. Banerjee reported in AIR 1968 Cal 365 wherein the previous decision given by Rankin, C. J. in Anand Lal's case (AIR 1932 Cal 346) (supra) as well as the decision given by Rajasthan High Court in H. Martin De Silva (AIR 1957 Raj 275) and other relevant decisions of other High Courts have been considered, and the view taken by Rankin, C. J. has been reaffirmed. The same High Court has also affirmed the view of Rankin, C. J. in Krishna Chandra Das v. Lakshmi Narayan Das reported in AIR 1950 Cal 434.

14. We find that the decision given by the Calcutta High Court in Anand Lal's case has been subsequently followed even by other High Courts. We do not propose to make elaborate reference to all these decisions as, in our opinion, a short reference to these decisions would suffice. The Lahore High Court has fully relied upon the observations of Rankin, C. J. in Ganesh Das v. Khanthu reported in AIR 1935 Lah 448. A Full Bench of the Punjab High Court (Circuit Bench at Delhi) has exhaustively, considered all the decisions on the point and has disapproved the above view taken by the Rajasthan High Court in Daryodh Singh v. Union of India reported in (1966) 68 Punj LR (Delhi) 299 (FB) and has observed as under :--

'It is the compensation money which has to be apportioned under Section 30 of the Land Acquisition Act, between the various persons having interest in the land acquired. The dispute as to apportionment would be a dispute relating to compensation and being a dispute under the Land Acquisition Act where the land has been acquired for a public purpose, an appeal under Section 54 of the Act against an order apportioning compensation is covered by Section 8 of the Court-fees Act, and the court-fee has to be computed according to the difference between the amount awarded to the appellant and the amount claimed by the appellant.'

15. The Patna High Court has also taken the same view in Braja Kawat v. Madanlal Agarwalla reported in AIR 1951 Pat 608. The Andhra Pradesh High Court has adopted the same line of reasoning in M. Dodla Malliah v. State of Andhra Pradesh through Asst, Collector and Land Acquisition Oficer, Warangal reported in AIR 1964 Andh Pra 216. The Judicial Commissioner, Himachal Pradesh has also taken the same view in Smt. Vindhya Basani v. Jadab Singh reported in AIR 1961 Him Pra 30.

16. Some of the above referred decisions have referred to the Bombay case of Mangaldas Girdardas v. Assistant Collector, Ahmedabad reported in AIR 1921 Bom 325, and have observed that it takes a contrary view. We have therefore, referred to this Bombay decision also. But we find that it does not take a contrary view. A Division Bench of the High Court of Bombay held in that case that when the Government claims an interest in the land, the so-called apportionment between the Government and the private claimant of the total compensation payable in respect of the property, is in substance the same thing as the determination of the amount payable by the Government to the claimant under the circumstances of the particular case, and so an appeal relating to such matter must be stamped ad valorem under Section 8 of the Court-fees Act. Thus, we find that even this decision of the Bombay High Court falls in line with other similar decisions which we have discussed above.

17. What remains to be considered now is some observations made by the Madras High Court in A. Mahalinga Kudumban v. Theetharappa Mudaliar reported in AIR 1929 Mad 223. A reference to the report of this decision shows that three questions were refer-red to the High Court of Madras, and one of those three questions was as to what was the amount of court-fees payable on such memorandum of appeal. While disposing of this question the Court observed that the amount of court-fee has to be determined with reference to the Court-fees Act and Section 8 of the Court-fees Act could not apply to that case as that was not an appeal against an award. The High Court further observed that there was no disputeas regards the amount of compensation awarded in that case and that Section 8 of the Court-fees Act could apply only to those cases where the claimant claimed more than the amount awarded by the lower Court. The High Court further observed that if Section 8 was not applicable, the only other provision of the Court-fees Act which was applicable to a casa like that was Article 1, Schedule 1 which contemplates the payment of ad valorem fee. Thus, even though the High Court of Madras came to the conclusion in that case that Section 8 was not applicable, it did apply the provisions of the Article 1 Schedule 1 of the Court-fees Act which contemplates the payment of ad valorem fee. However, in our opinion, Section 8 is fully applicable to the facts of the present case and, therefore, we need not go further into discussion of the question whether the view taken by the Madras High Court about the applicability of Section 8 was proper or not,

18. Thus on the review of the casa law on the subject we find that the view taken by the Rajasthan High Court in the case of H. Martin De Silva on the present question is not acceptable. We, therefore, answer the question which is referred to it as under :--

In cases wherein the only dispute between the parties is with regard to the apportionment of the compensation, the court-fee payable is as contemplated by Section 8 of the Court-fees Act read with Article 1 of the First Schedule attached to it. In other words, the Court-fee payable is on ad valorem basis on the difference of the amount awarded and the amount claimed in appeal.

19. We accordingly dispose of this reference. The costs of this hearing shall be the costs in appeal.


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