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Custodian, Evacuee Property Vs. Amarnath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Misc. First Appeal No. 21 of 1979
Judge
Reported inAIR1981J& K88
ActsJammu and Kashmir Land Acquisition Act, 1990 - Sections 18, 31 and 52; ;Land Acquisition Act, 1894 - Sections 18, 30 and 54; ;Jammu and Kashmir Court-fees Act, 1977 - Section 8 - Schedule - Articles 1, 11 and 17; ;Code of Civil Procedure (CPC) , 1908 - Sections 2(2) and 96; ;Court-fees Act, 1870 - Section 8 - Schedule - Articles 1, 11 and 17; ;Constitution of India - Article 14
AppellantCustodian, Evacuee Property
RespondentAmarnath and ors.
Appellant Advocate S.A. Salaria, Adv.
Respondent Advocate R.P. Sethi, Adv. for Respondent Nos. 1 and 2
DispositionAppeal dismissed
Cases ReferredRishiraj Singh v. Raghubar Singh
Excerpt:
- kotwal, j.1. in this appeal under section 52 of the j. and k. land acquisition act, 1990, hereinafter referred to as the act, a preliminary objection has been raised that the same is liable to be dismissed, as the court-fee paid on it is inadequate.2. to accomplish the public purpose of laying out a housing colony in the railway head complex, jammu, land measuring 669 kanals and 17 marlas, belonging to several owners in villages chhanni rama, chhanni beeja, and chhanni himmat was, in the first phase, acquired by collector, jammu, by his award dated 25-1-1977. the land was categorised according to its quality, and different rates for different categories were fixed by him for determining its compensation. out of this land, custodian evacuee property, jammu, who is the appellant before us,.....
Judgment:

Kotwal, J.

1. In this appeal under Section 52 of the J. and K. Land Acquisition Act, 1990, hereinafter referred to as the Act, a preliminary objection has been raised that the same is liable to be dismissed, as the court-fee paid on it is inadequate.

2. To accomplish the public purpose of laying out a housing colony in the Railway Head Complex, Jammu, land measuring 669 kanals and 17 marlas, belonging to several owners in villages Chhanni Rama, Chhanni Beeja, and Chhanni Himmat was, in the first phase, acquired by Collector, Jammu, by his award dated 25-1-1977. The land was categorised according to its quality, and different rates for different categories were fixed by him for determining its compensation. Out of this land, Custodian Evacuee Property, Jammu, who is the appellant before us, was held entitled to receive compensation for 74 kanals. Two persons, namely, Amar Nath and Rattan Singh, who are herein the first and the second respondents respectively, claimed that they and not the Custodian were the owners of these 74 kanals of land and thus entitled to receive its compensation to the exclusion of the appellant which too, according to them, had been wrongly assessed by the Collector. They made an application in terms of Section 18 of the Act, requiring the Collector to make a reference on these two points to District Judge, Jammu. The Collector made a reference accordingly. Addl. District Judge, Jammu to whom this reference was transferred by the District Judge, treating it to have been made under Section 31 of the Act, eventually held the first and the second respondents exclusively entitled to receive the compensation assessed by the Collector, since before him, challenge to the adequacy of the compensation was given up by these respondents. The appellant, feeling aggrieved of this order, has challenged it in this appeal and has paid on it a total court-fee of Rs. 7.50, including the process fee. This is how the preliminary objection.

3. At the very outset, we may point that the learned Additional District Judge was not right in treating the reference as one made under Section 31. It had as a matter of fact neither been made under Section 31, nor could it, in the circumstances of the case, have been made under the said section. A reference under Section 31 differs from one made under Section 18 in more than one way. Firstly, a reference under Section 31 is merely confined to the question of the apportionment of compensation settled by the Collector amongst its various claimants, or to the question as to who out of them is entitled to receive it. A reference under Section 18, besides these two questions, may be made on the question of measurement of the land acquired or/and on the question of adequacyof the amount of compensation determined by the Collector.

4. Secondly, the Collector has a discretion to make a reference under Section 31, which he may exercise at any time after he has settled the amount of compensation. This he may do either on an application made to him by an interested person, or even suo motu. He has, however, no such discretion under Section 18. Once an interested person has made an application to him in that behalf, which he finds not barred by limitation provided by Sub-section (2), he is found to make a reference under this section. But, this he can do only on an application made to him by an interested person, and not suo motu, whether or not such person has appeared before him in the acquisition proceedings culminating into the award. It is not open to him to refuse making a reference on the ground that the person who seeks it is, in his opinion, not an interested person. His award being no better than an offer to purchase the land at the price determined by him, he has no option but to make a reference to the Court, which alone is competent to determine the title of such person to receive the compensation, once the person making the application has claimed an interest in it, for an interested person, according to the definition of the expression contained in Section 3 (b), includes all persons claiming an interest in compensation. In case he wrongly refuses to make a reference, he can be compelled to do so by a writ of mandamus, though the aggrieved party, in such circumstances, shall have no right to approach the Court directly.

5. Thirdly, whereas a reference under Section 31 can be made only before the award is made, a reference under Section 18 can be made, only after the award has been made. There are reasons to support this inference. To begin with, an award under Section 11 contemplates decision on three points : (i) the area of the land acquired; (ii) the amount of compensation payable for it; and (iii) its apportionment among its claimants. Unless the order of the Collector contains a decision on all the aforesaid three points, it cannot acquire the status of an award envisaged by Section 11. A reference under Section 31 on the other hand pre-supposes inability on the part of the Collector to give a decision on the question of the apportionment of the compensation settled by him, or on the question of the title of its claimant to receive the same. Clearly, therefore, a reference under Section 31 is made at a stage when the award has not come into existence.The other reason is provided by Sub-section (2) of Section 32, which while making a provision for depositing the amount of compensation, speaks of that Court alone to which a reference under Section 18 would be competent, in case the interested persons do not consent to receive it, after the Collector has made an award in terms of Section 11. This clearly implies that after the award has been made, a reference under Section 18 alone is competent. Lastly, after the award has been filed by the Collector in terms of Section 12, it becomes final between him and the persons interested, and is conclusive evidence of the area of the land acquired, the compensation awarded for it, and its apportionment among the persons interested. To assume power in the Collector to reopen the award at his sweet will by making a reference under Section 31 will bring Section 12 into conflict with Section 31 and destroy the finality attached to an award. In order to harmonize these two provisions, power in him to make a reference under Section 31 shall not be envisaged, after he has made the award.

6. Needless to go into other points of distinction between these two types of reference, suffice it to say that in the present case reference was made by the Collector not merely on the question as to whom the compensation was payable, but also on the question as to whether the amount of compensation fixed by him was adequate; a question undoubtedly beyond the purview of Section 31. Furthermore, the reference was made by him after he had made and filed the award. Clearly, therefore, it could not be a reference under Section 31, but could be and in fact was one under Section 18.

7. The total court-fee paid on the memo of appeal, as already noticed, is Rs. 7.50, which includes process fee as well. For the appellant, it has been contended that Section 8 of the Court-fees Act has no application to the present case, as this section applied to only those cases where the dispute is in regard to the quantum of compensation determined by the Land Acquisition Court. In the instant case, the dispute being not with regard to the quantum of compensation, but exclusively with regard to the title of the parties to receive it, fixed court-fee was payable either under Article 11 or Article 17(iii) of Schedule II of the Court-fees Act, adding, that even Article 1 of Schedule I did not have any application, because it applied to only those cases where the appeal lay to a Court other than a High Court. These provisions, for the sake of ready reference, are reproduced as below:

'8. 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 com puted according to the difference between the amount awarded and the amount claimed by the appellant.'XX XX XSCHEDULE IAd valorem fees.NumberProper Fee 1. Plaint.

Writtenstatement pleading a set-off or counter-claim or memo-randum of appeal (not otherwise provided for in this Act) or ofcross-objection presented to any Civil or Revenue Court.

When such amount or value exceeds............

XX XX XX XX

SCHEDULE IIFIXED FEESNumber

X

Proper fee

XX

XX

XX

ii. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented:

(a) - to the Governor or the HighCourt or Minister

Four rupees

17. Plaint or memorandum of appeal in each of the following suits:

iii. to obtain a declaratory decreewhere no consequential relief is prayed....

Ten rupees'

8. What court-fee in a given case would be payable on the memo of appeal directed against an order of a Land Acquisition Court, shall necessarily depend upon the provision of law under which the appeal has been filed. Section 52 of the Act gives a right to a party to file an appeal against an award of Land Acquisition Court, and against no other order. An order by the Court on a reference made to it under Section 18 alone is an award in terms of Section 26. This section occurs in Part III of the Act, the first to occur wherein is Section 18. A reference under Section 18, as already observed, can be made only after the award has been made by the Collector. Consequently, an order passed by the Court on a reference made to it under Section 31 is not an award for the simple reason that a reference under this section can be made only before the Collector has made an award in terms of Section 11. This, however, does not mean that no appeal is competent against an order of a Land Acquisition Act which does not tantamount to an award. We have in the Act Section 51 which says that the provisions of Law relating to the procedure in civil actions, unless they may be inconsistent with anything contained in the Act, shall apply to all proceedings before the Land Acquisition Court. The law relating to procedure in civil actions is contained in the Code of Civil Procedure, Section 96 whereof provides that an appeal shall lie against every decree passed by a Civil Court exercising original jurisdiction, provided it is not a decree passed with the consent of the parties, or is not otherwise barred under the Code or under any other law for the time being in force. If an order passed by a Land Acquisition Court under Section 31 can be said to be a decree, then surely an appeal, would lie against it under Section 96, Civil P. C. read with Section 51 of the Act, as there is nothing in the Code, or in the Act itself, which creates a bar against such an appeal. The result, in our opinion, would have remained the same, even if Section 51 were not to find place in the Act, for Section 4 of Civil P. C. by its own force makes the provisions of the Code applicable to all matters on which the special or local law is silent. This section does not meanthat the Code would not apply to proceedings of civil nature under any special or local law, but only says that in the event of inconsistency between the provisions of the Code and the provisions of the special or local law, the former shall give way to the latter, implying thereby that in the absence of any such inconsistency the former shall apply.

9. Decree as defined in Section 2(2), Civil P. C. means a formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy between them in a suit. The word 'suit' has not been defined in the Code, though it is generally understood to mean a civil proceeding that commences with the filing of a plaint. A Land Acquisition Court in a reference under Section 31, there can be no manner of doubt, conclusively decides important questions of the apportionment of, or title to the compensation settled by the Land Acquisition Officer, in so far as the said Court is concerned. The District Judge, or any other officer appointed in this behalf, acts as a Court and not as a persona designata. In case a restricted meaning were to be given to the word 'suit', then the party adversely affected by the Court's decision on a reference made to it under Section 31 would be inevitably deprived of a very valuable right of appeal, which would be there in case the same decision, in similar circumstances, and on the same material, were to be given by the same Court in a reference under Section 18. This would naturally mean hardship to the aggrieved party for no specious reason. Surely, this could not have been the intention of the legislation. Such an intention can hardly survive the attack of Article 14 of the Constitution. An extended meaning has, therefore, to be given to the word 'suit' with a view to carrying out the object of the Act. We are in respectful agreement with the connotation given to the word 'suit' by Sir Barens Peacock in Hurro Chunder Roy Chowdhury v. Soorodhonee Debia, (1868) 9 Suth WR 402:

'The word 'suit' does not necessarily mean an action nor do the words 'cause of action' and 'defendant' necessarily mean cause upon which an action has been brought, or a person against whom an action had been brought, in the ordinary restricted sense of the words. Any proceeding in a Court of Justice to enforce a demand is a suit; the person who applies to the Court is a suitor for relief; the person who defends himself against the enforcement of the reliefsought is a defendant; and the claim, if recoverable, is a cause of action.'

A similar view has been taken in A. Maha-linga Kudumban v. Theetharappa Mudalier, AIR 1929 Mad 223, Chikkanna Chettiar v. V. S. Perumal Chettiar, AIR 1940 Mad 474 (FB); Loomchand Sail v. Revenue Divisional Officer, Trichy, AIR 1975 Mad 177 and Rishi-raj Singh v. Raghubar Singh, AIR 1968 Madh Pra 228. We are, therefore, clearly of the opinion that a finding recorded by a Land Acquisition Court on the question of apportionment of compensation settled by the Collector, or on the question of title of the parties to receive it, is a decree against which an appeal would lie by force of Section 96, Civil P. C.

10. Section 8 speaks of the amount of compensation 'awarded'. This section, therefore, clearly refers to an award of the Land Acquisition Court. In terms of Section 26, as already pointed out, no order of a Land Acquisition Court, other than the one passed by it on a reference made to it under Section 18, can be said to be an award. It is this order alone against which an appeal under Section 52 lies to the High Court. Section 8 cannot thus apply to an order passed by a Land Acquisition Court on a reference made to it under Section 31, for such an order, even though it may be a decree, is yet not an award.

11. There is, however, no room for limiting the application of Section 8 to only those cases in which the quantum of compensation alone is in dispute. This section, on its plain language, is much wider in amplitude and covers all cases in which a dispute in regard to compensation is raised in one form or the other. Every dispute raised in an appeal against an award of a Land Acquisition Court, be it with regard to the measurement of the Land acquired, be it with regard to the amount of compensation, or be it with regard to its apportionment, or the persons to whom it is payable, directly or indirectly, relates to the claim laid by the appellant to the compensation, to which provisions of Section 8 would be necessarily attracted. Take for example a dispute raised in regard to the measurement of land. Here also what the appellant really claims is that whereas more area has been acquired, compensation has been awarded for a lesser area. He was therefore, to pay court-fee on the excess amount which, according to him, may be payable in the event of correct measurement of the land acquired, as this would indeed represent the difference between the amount awarded and the amount claimed within themeaning of Section 8. To illustrate it further, suppose the Land Acquisition Court has awarded a sum of Rs. 10,000/- as total compensation for a particular survey number at the rate of Rs. 2,000/- per kanai for its recorded area of five kanals. The appellant claims a total compensation of Rs. 12,000/-on the ground that the recorded area of the survey number is wrong and that its true area is six kanals. He shall pay court-fee on Rs. 2,000/- the same being the difference between the awarded sum of Rs. 10,000/- and the claimed sum of Rs. 12,000/-. A dispute in regard to restoration of land, occupied in excess of the land acquired, is beyond the scope of Section 18 and cannot be raised in the garb of a dispute relating to the measurement of the land acquired. Possession of the Collector over the excess land in such a case would be clearly that of a trespasser, for which the owner may have to seek a proper remedy elsewhere.

12. The same is true of a dispute relating to apportionment of compensation. In such a case also what the appellant actually claims is that whereas he was entitled to a larger share in compensation, he has been awarded a lesser one. He must, therefore pay court-fee on the amount by which, he claims, he has been paid less. This amount under Section 8 would represent the difference between the amount awarded and the amount claimed. Here also, suppose the Land Acquisition Court has awarded a sum of Rs. 6,000/- in favour of the appellant as representing his one third share in the total compensation of Rs. 18,000/-. The appellant claims a sum of Rs. 9,000/- on the ground that his share in the compensation is one-half. He shall pay court-fee on Rs. 3,000/- which would represent the difference between the awarded sum of Rs. 6,000/- and the claimed sum of Rs. 9,000/-. A dispute relating to the title of the appellant to receive compensation to the exclusion of all others is none too different. In this case also he has to pay court-fee on the entire amount of compensation, for in such a case he not having been found entitled to receive any part of it, the entire compensation amount itself would re-present the difference between the amount awarded and the amount claimed. To give an example, suppose a dispute is raised before a Land Acquisition Court by A and B, each claiming the total compensation of Rupees 10,000/- to the exclusion of the other. The Court holds A entitled to receive the entire compensation. B files an appeal against the said award on the ground that he and not A is entitled to receive the compensation. He shall pay court-fee on Rs. 10,000/- becausethis indeed would be the difference between the sum claimed and the sum awarded. In this case the amount claimed being Rupees 10,000/- whereas the amount awarded being nil, the equation would be : Rs. 10,000 = 10,000. Section 8 would thus apply to all kinds of adjudications given by a Land Acquisition Court on a reference made to it under Section 18.

13. We are in respectful agreement with the view taken by Rankin, C. J. in re Ananda Lal Chakrubutty, AIR 1932 Cal 346 that Section 8 itself is not the charging provision but it merely prescribes the mode of determining the amount on which ad valorem court-fee has to be paid under Article 1 of Schedule I, which indeed is the charging provision. His Lordship observed :

'The purpose of Section 8 is to say that when you come to make a charge under Article 1, Schedule I, the figure which is to be taken as the appropriate figure under Col. 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.'

14. Article 1 of Schedule I no doubt does not specifically speak of an appeal to the High Court, nevertheless, as pointed out by their Lordships in Krishna Mohan Singh v. Rughunandan Pandey, AIR 1925 Pat 392 (FB), this omission perhaps occurred due to an unskilled drafting and that this article applies as much to appeals to the High Court, as it applies to appeals to Civil Courts subordinate to it. We have, therefore, no hesitation in holding that ad valorem court-fee is payable in terms of Article 1 of Schedule I on an appeal preferred against an award of the Land Acquisition Court, or a part thereof, which it has given on a reference made to it under Section 18, and the amount on which ad valorem court-fee is payable has to be worked out according to the method given in Section 8. It shall not matter whether the Land Acquisition Court has itself determined the amount of compensation, or has merely laid down the formula for its determination. Id certemest quod certum reddi potest i.e. that is certain which can be reduced to a certainty. Nor shall it matter that the compensation money is lying with the Court itself and is not to be recovered either from the Land Acquisition Officer, or from any other person to whom it has been already paid. Even if the amount claimed is lying with the Court, ad valorem court-fee shall have to be paid on it in terms of Article 1, Section 8 merelyspeaks of laying a claim to compensation, but not of its recovery. A claim to compensation which stands already deposited with the Court is as good a claim, as it would be when it is in regard to compensation to be recovered from the Land Acquisition Officer, or its recovery is claimed from a person to whom it has been already paid pursuant to his award. In both the cases, Section 8 shall have full play. With utmost respect to the learned Judges who took a contrary view in Thammayya Naidu v. Venkataraman-amma, AIR 1932 Mad 438 we cannot persuade ourselves to hold that fixed court-fee payable on a mere declaration would be enough in case the amount of compensation stands already deposited with the Court, or to put it in other words, is in custodia legis.

15. Neither Article 11, nor Article 17(iii) of Schedule II shall apply to an appeal under Section 52. Article 11 shall have no application because it applies to only such orders as are neither decrees, nor do they have the force of a decree. An award made by a Land Acquisition Court on a reference made to it under Section 18 is a decree in terms of Sub-section (2) of Section 26, as such, application of this article shall be clearly excluded. Likewise, Article 17(iii) too shall have no application because Section 8 having universal application to decisions of Land Acquisition Courts on all kinds of disputes contemplated by Section 18, payment of fixed court-fee under this Article would be out of question. These are exactly the reasons which impel us to take a view different from the one taken in Hakim Martin De Silva v. Martin De Silva II, AIR 1957 Raj 275, a decision relied upon by Mr. Salaria. We, on the other hand prefer the view taken in Braja Kewat v. Madanlal Agarwalla, AIR 1951 Pat 608; Rishiraj Singh v. Raghubar Singh, AIR 1968 Madh Pra 228 and in re Ananda Lal Chakrubutty, AIR 1932 Cal 346, though we cannot go to the extent of agreeing with the view expressed by the learned Judge in AIR 1951 Pat 608 (supra) that application of Article 17(iii) shall be excluded because a reference under Section 18, or Section 31, is not a suit to attract the provisions of this article. The terra 'suit' as we have already held, shall have to be given a wider connotation so as to include even proceedings commended on a reference made tinder Section 18 or Section 31.

16. This brings us to the other question as to what court-fee would be payable on an appeal preferred against an order of a Land Acquisition Court passed by it under Section 31. Such an order being a decree, as alreadyheld, Article 11 of Schedule II shall have no application. An order under Section 3f not being an award, Section 8 too shall have no application, Even Article 17(iii) shall not apply because there being no provision in the Act authorising a Land Acquisition Officer to deposit the compensation amount with the Land Acquisition Court before making a reference to it under Section 31, the appellant shall have to claim recovery of the compensation amount from the Land Acquisition Officer, and the said amount thus not being in custodia legis, a mere declaration in terms of this order would be wholly inappropriate. The only provision applicable to such appeals would be one contained in Article 1 of Schedule I, and the appellant shall have to pay ad-valorem court-fee on the amount or the value of the subject matter of the dispute. The expression 'value of the subject matter in dispute' occurring in this article, refers to the value of the subject matter in dispute in the appeal, and not to the value of the subject matter in the order appealed against. To give an illustration, suppose the Land Acquisition Court has on apportionment of the compensation worked out the share of the appellant at Rs. 5,000/- but the appellant claims that he is entitled to Rupees 7,000-. The value of the subject matter in appeal shall be Rs. 2,000/- and not Rupees 5,000/- or Rs. 7,000/-. Suppose in another case the Land Acquisition Court has not found the appellant entitled to any share, the value of the subject matter in appeal against such an order would be the actual amount of compensation claimed by the appellant. Viewed thus, provisions of Section 8 would apply to appeals against decrees passed in references under Section 31 in spirit, though not in letter. The net result no doubt may be the same, still it is difficult to subscribe to the view taken in AIR 1968 Madh Pra 228 (supra) that Section 8 would in terms apply to appeals against decrees passed in references made under Section 31. Section 31 of the Act, it may be pointed out, corresponds to Section 30 of the Central Act.

17. Total compensation for 74 kanals of land to which a claim was laid by respondents 1 and 2, and which was also allowed by the learned Addl. District Judge, if worked out according to the rates fixed by the Collector would run into several thousand rupees. But, the court-fee paid on the memorandum of appeal does not exceed Rs. 7.50, including process-fee. There can be thus, no manner of doubt that the court-fee paid is grossly inadequate. Section 4 of the Court-fees Act enacts that no document shall be received in any proceeding unless proper court-fee has been paid on it. It follows that a memorandum of appeal which is not stamped, or is even insufficiently stamped, will be non est. Section 149, Civil P. C., which is in a way an exception to Section 4, is an enabling provision and empowers the Court to allow the appellant to make up the deficiency in court-fee, and once it is done, the document shall be validated retrospectively from the date of its presentation. But, to exercise or not to exercise such a power entirely lies in the discretion of the Court, which it has to exercise in the given circumstances of a case not arbitrarily or capriciously, but judicially, more especially when a valuable right of limitation has accrued in favour of the opposite party. The Court will exercise its discretion in case it is satisfied that the omission in payment of adequate court-fee has occurred due to some mistake on the part of the appellant which is bona tide. Recklessness or gross negligence on his part can hardly evoke any sympathy of the Court and persuade it to exercise its discretion in his favour.

18. In the instant case, the appellant relies upon AIR 1957 Raj 275 (Supra) to show that he was misled in paying the court-fee by the principle laid down in this authority. This argument might have weighed with us, had the court-fee been in fact paid in terms of this authority. Actually this is not so, for a minimum court-fee of Rs. 10/- was payable even according to this authority. Not only that, the appeal was filed on 18-5-1979. An objection was taken on behalf of respondents 1 and 2 on 1-6-1979 in C. M. P. No. 53 of 1979 that the appeal was incompetent for want of adequate court-fee. The appellant's counsel acquired knowledge of this objection on 1-6-1979 itself when he received a copy of the said objection petition. He remained inert and did not take any step to make up the deficiency, though he could have done so at that stage without facing any difficulty, as the period of limitation for filing the appeal had not expired till then. We have, therefore, no doubt in our mind that far from being misled due to a bona fide mistake, the appellant has been reckless and grossly negligent in paying the court-fee. He does not deserve the sympathy of the Court. We decline to use our discretion in his favour and reject the appeal which, if filed today on payment of proper court-fee, would be clearly barred by time. In the peculiar circumstances of the case, we leave the parties to bear their own costs.


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