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Case Number

Appeal No. 219 of 1967

Attorney(S)

Aiyar and Dolia and Vastipal Jain, for Applt.
M.P Subramaniam and K.L Krishnan for Respts.
The Government Pleader (on notice from court)

Judges

Ismail
Natarajan, JJ.

Acts

Ss. 30 and 31(2) of the Land Acquisition Act, 1894 (1 of 1894) hereinafter referred to as the Act,
S. 25(d) of the Madras Court-fees and Suits Valuation Act, Madras Act 15 of 1955,
S. 8 read with Art. 1 of the first Schedule of the Central Act
S. 8 read with Art. 1, Schedule 1, Schedule I of the Central Act
provisions of the Central Act.14. S. 4 of that Act
S. 8 read with Art. 1, Sch. I of the Central Act,
S. 8 reed with Art. 1, Sch. I of the Central Act.
Persons (Land Acquisition Act, 1948,
II, Art. 17(iii) of the Central Act
provision of the Court-fees Act
S. 8 of the Central Act
S. 20 of the Madras Act
S. 50 of the Madras Act,
COURT FEES ACT

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Smart Summary

Structured Summary of the Opinion (Ismail, J.)

Factual and Procedural Background

An extent of 44 acres and 35 cents in S.F. Nos. 1/5B and 1/6 in K. Sathanur village was acquired for construction of a Central Godown at Tiruchirappalli. The Collector awarded compensation on 24 April 1965 at Rs. 1,600 per acre, the total compensation (including solatium and interest) being Rs. 97,977.94. The acquired lands were registered in the names of Peerdhan Jugarmal Sait (the appellant’s father), the 4th claimant (4th respondent) and the 5th claimant (5th respondent). Because of disputes as to apportionment and title, the Collector deposited the compensation in Court and referred the matter under S. 30 of the Land Acquisition Act, 1894 for apportionment.

The appellant (first claimant in the original petition) filed an initial claim and later sought to substitute an additional claim statement (I.A. No. 218 of 1966) asserting he was in possession of the entire required land and that the court auction purchaser, Jayalakshmi Ammal, never took possession and therefore had no title; he claimed the entire deposited compensation. Respondents 2 and 3 claimed through their mother, Jayalakshmi Ammal, asserting she purchased the land at court auction (sale confirmed in 1952) and settled most of it on her sons; the 4th respondent claimed a discrete 4.91 acres purchased from Jayalakshmi Ammal. The Principal Subordinate Judge dismissed the appellant's I.A. and held that Jayalakshmi Ammal took possession and had title; the Judge apportioned the deposited compensation in favour of respondents 2–4. The appellant appealed against that order.

After hearing, the present Court found no merits in the appeal and prepared to dismiss it. At that stage the Court noticed a potentially incorrect court-fee on the memorandum of appeal (Rs. 200.50) and invited submissions on the proper court-fee payable. The parties and the Government Pleader were heard on whether the fee should be ad valorem or fixed under provisions of the Madras Court-fees and Suits Valuation Act.

Legal Issues Presented

Whether an order passed by a Court on a reference under Ss. 30 and 31(2) of the Land Acquisition Act, 1894, is an "award" within the meaning of the Act such that S.54 (appeals from awards) applies, or whether an appeal lies under general principles (e.g., as a decree under the C.P.C. or under the general right of appeal in S.96, C.P.C.).
What is the proper court-fee payable on a memorandum of appeal against an order of apportionment made on a reference under Ss. 30 and 31(2) — specifically whether the fee is ad valorem (computed under provisions corresponding to S. 8 of the Central Court-fees Act or S. 51 of the Madras Act) or a fixed fee (e.g., under S. 25 or S. 50 of the Madras Act or Sch. II Art. 17(iii) of the Central Act).
Whether the appeal should be dismissed (or otherwise affected) because an apparently inadequate court-fee was paid on the memorandum of appeal.

Arguments of the Parties

Appellant's Arguments

The memorandum of appeal was presented with a court-fee of Rs. 200.50 and, according to the appellant's counsel, the appeal should be valued either under S. 25(d) of the Madras Act or, at most, under S. 50 of the Madras Act (a fixed fee), which would justify the Rs. 200.50 fee.
After the Court observed a possible shortfall in court-fee, the appellant’s counsel contended that the appeal was to be valued under those Madras Act provisions and sought relief from having to pay any alleged deficit court-fee; in particular, he urged that the appeal not be dismissed for the fee defect (requested that appellant not be compelled to pay the deficit).

Government / Respondents' Arguments

The learned Additional Government Pleader (appearing for the State) contended that the appeal had to be valued on an ad valorem basis and that ad valorem court-fee was payable on the memorandum of appeal.
Respondents (and the lower Court's earlier conclusions) maintained that Jayalakshmi Ammal had taken possession and had title and that the apportionment made by the subordinate court in favour of respondents 2–4 was correct; the practical effect being that an appeal by the appellant amounted to a claim to recover the compensation amount from successful claimants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A. Mahalinga Kudumban & ors. v. Theetharappa Mudaliar	An order by a Court on a reference under S. 30 is not an "award" for purposes of S. 54; nevertheless an appeal is available — either because such an order is a decree within S.2(2) CPC or because the ordinary right of appeal under S.96 CPC applies to proceedings before a civil court.	The Court followed this decision as establishing that an appeal lies against orders on references under Ss. 30 and 31(2) and applied its reasoning in the present case.
Janapareddi Venkatareddi v. Janapareddi Adhinarayana Rao	Followed the reasoning in A. Mahalinga Kudumban regarding availability of appeal.	Noted as following Mahalinga; supports the Court's conclusion that an appeal is available.
N.K.R.M. Rajagopala Chettiar v. The Hindu Religious Endowments Board (Full Bench)	Dissented from the reasoning of the Bench in A. Mahalinga Kudumban on the appealability question.	Not followed; later Full Bench decisions restored Mahalinga's correctness.
Chikkanna Chettiar v. V.S. Perumal Chettiar (Full Bench)	Restored the correctness of the A. Mahalinga Kudumban reasoning that an appeal lies.	This restoration contributed to the Court's acceptance that an appeal is available.
Chintakayala Thammayya Naidu v. Chintakayala Venkataramanamma & another	Held that where a successful claimant before the District Judge is declared entitled to immediate payment, an appeal is in the nature of recovery of money and must be valued ad valorem (i.e., ad valorem fee payable on appeal).	The Court relied on this decision to conclude that appeals against apportionment orders must be valued ad valorem when they seek recovery of money from successful claimants; the decision was followed.
Sheo Rattan Rai v. Mehri; Shrimati Trinavani Dasi v. Krishna Lal	Illustrations of practice in demanding ad valorem fee in appeals under the Land Acquisition Act.	Cited as supporting practice of ad valorem fees in such appeals.
In re Ananda Lal Chakrabutty & ors. (Rankin, C.J.)	Held that ad valorem court-fee is payable on a memorandum of appeal against apportionment decisions — S.8 (Central Act) read with Art. I, Sch. I applies; S.8 computes fee by reference to difference between amount awarded and amount claimed by appellant.	Cited at length; the Court treated this as authoritative on that construction of the Central Act and used its reasoning in the fee analysis.
Braja Kewat & another v. Madanlal Agarwalla & others (Patna High Court)	Held Art. I, Sch. I of Central Act applies; ad valorem fee payable and the value may equal entire compensation if appellant claims full amount.	Noted and used as supporting authority for ad valorem valuation where appellant claims the entire compensation.
Smt. Vindhya Basani v. Jadab Singh (Judicial Commissioner, Himachal Pradesh)	Agreed with Rankin, C.J.'s view that S.8 read with Art. I, Sch. I leads to ad valorem fee.	Cited as another authority supporting ad valorem approach.
Rash Behari Sanyal v. Gosto Behari Goswami (Calcutta High Court, Costello, J.)	Held the dispute was in substance a suit for a declaration with consequential relief; fee allowed to be fixed/valued under provisions applicable to declaratory suits (S.7(4)(c) of Central Act) — not an ad valorem situation.	Recognized as an example of cases falling within an exception to the general ad valorem principle; Court considered and reconciled this as an exception rather than general rule.
Kali Gopal Chatterjee v. T. Banerjee & others (Calcutta High Court)	After considering authorities, agreed with Rankin, C.J. that S.8 read with Art. I, Sch. I results in ad valorem fee; reconciled Rash Behari as an exception.	Cited in support of the ad valorem rule; Court relied on this reconciliation.
Hakim Martin De Silava v. Martin De Silva II & others (Rajasthan High Court)	Held that a fixed court-fee under Sch. II, Art. 17(iii) (declaration) was payable where the appellant sought a declaration of title and apportionment follows.	This decision was noted as taking a contrary view and explicitly not followed by other authorities referred to; the Court did not adopt this view.
Mangal Sen v. Union of India (Delhi High Court)	Decision concerned a different enactment (Resettlement of Displaced Persons Act, 1948) and therefore was not treated as relevant.	The Court observed it was not of assistance because it dealt with a different statutory scheme.

Court's Reasoning and Analysis

The Court proceeded in two principal analytical steps: first, whether an appeal lies against an order made by a Court on a reference under Ss. 30 and 31(2) of the Land Acquisition Act; second, what court-fee is payable on a memorandum of appeal in such a case.

1. Appealability of orders on references under Ss. 30 and 31(2):

The Court analysed the structure of the Land Acquisition Act: S.11 (award by Collector), S.12 (file in Collector's office), S.18 (reference to Court), Part III (Ss. 18–28) and S.26 (awards by the Court under Part III) including sub-s. (2) introduced in 1921 that deems such awards to be decrees and judgments within the meaning of the C.P.C.
The Court observed that S.26(2) applies expressly to awards under Part III (references under S.18). An order passed by a Court on a reference under S.30 (Part IV) and S.31(2) (Part V) is not designated as an "award" by the Act and therefore is not within the coverage of S.26(2); consequently S.54 (appeals from awards) does not apply to such orders.
Relying on its earlier Bench decision in A. Mahalinga Kudumban (and later authorities which approved that reasoning), the Court accepted that, notwithstanding that the order is not an "award" under S.26(2), an appeal is nevertheless available on general principles: either (a) the order can be treated as a decree within the meaning of S.2(2) CPC, or (b) proceedings before a civil court are governed by usual procedural law and the right of appeal under S.96 CPC attaches unless expressly taken away. The Court followed the line of cases upholding that an appeal lies.

2. Proper court-fee on memorandum of appeal in appeals against apportionment orders:

The Court examined prior decisions and the provisions of the Central Court-fees Act (S.8 and Art. I, Sch. I) and the corresponding Madras Act (S.51 and the provisions for ad valorem fees). It observed that S.51 of the Madras Act corresponds materially to S.8 of the Central Act and that Art. I, Sch. I of the Madras Act prescribes ad valorem fees for "plaint or written statement ... or memorandum of appeal presented to any Court."
Noting the consistent authority (e.g., Rankin C.J. in In re Ananda Lal Chakrabutty) that S.8 read with Art. I, Sch. I results in an ad valorem fee in appeals against apportionment orders, and other supporting decisions (including Chintakayala Thammayya Naidu), the Court held the correct rule to be that the fee is ad valorem where the appeal seeks recovery of money from successful claimants.
The Court considered exceptions identified in some decisions (e.g., Rash Behari Sanyal) where a dispute is in substance a claim for a declaration with only consequential relief and therefore falls within different valuation principles; the Court treated such authorities as limited exceptions and not altering the general rule.
The Court concluded that the Madras Act's more elaborate provisions do not materially alter the conclusion: S.51 of the Madras Act (corresponding to S.8 Central Act) and Art. I, Sch. I support ad valorem valuation. S.52 (Madras Act) provides that the fee in appeal shall be the same as the fee payable in the Court of first instance on the subject-matter of the appeal; because the appeal's subject-matter is the appellant's right to recover the compensation from successful claimants, the fee in the Court of first instance would be ad valorem on the amount claimed. Accordingly, the memorandum of appeal should have been valued ad valorem on the deposited compensation (Rs. 97,977.94).
The Court invoked S.20 of the Madras Act to give notice to the State Government about the question of proper fee; this procedure was followed in the case before the Court.
Finally, on the procedural question whether the appeal should be dismissed for non-payment of the proper court-fee, the Court declined to dismiss the appeal at that stage: it would not (after hearing and at the point of dictation of judgment) give time for payment or dismiss for the fee defect. Instead, having dismissed the appeal on merits, the Court directed that the appellant pay the deficit court-fee to the Government (calculated on the ad valorem basis) and awarded costs to respondents 2–4.

Holding and Implications

Holding: The appeal is DISMISSED on merits.

Additional dispositive rulings and directions:

The Court held that an appeal lies against an order of apportionment made by a Court on a reference under Ss. 30 and 31(2) of the Land Acquisition Act (the order is not an "award" under S.26(2)/S.54, but appealability exists by virtue of the settled principles discussed in the cited authorities).
The Court held that the proper court-fee payable on the memorandum of appeal in such cases is an ad valorem fee computed on the amount claimed — in this case ad valorem on the entire compensation deposited in Court, i.e., Rs. 97,977.94 (applying S.51 of the Madras Act read with Article I of Schedule I and S.52 of the Madras Act as appropriate).
The Court ordered that the appellant pay the deficit court-fee to the Government on the basis that the memorandum of appeal should have been valued ad valorem on Rs. 97,977.94, and awarded costs in favour of respondents 2–4.

Implications:

This opinion confirms and applies the line of authority (including A. Mahalinga Kudumban and Chintakayala Thammayya Naidu) that appeals against apportionment orders on references under Ss. 30 and 31(2) are maintainable and that the appropriate court-fee is generally ad valorem where the appeal seeks recovery of money from successful claimants.
The Court treated decisions that reached a different conclusion (e.g., fixed fee for declaration in some fora) as limited or distinguishable exceptions and did not adopt those views for the present appeal.
The direct effect on the parties: the appellant's appeal is dismissed on merits; the appellant must pay the deficit ad valorem court-fee to the Government (computed on Rs. 97,977.94) and pay costs to respondents 2–4. The Court did not set a new, broader precedent contrary to the cited authorities but reaffirmed the ad valorem rule under the Madras Act in this context.

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Loomchand Sait v. The Revenue Divisional Officer, Tiruchirapalli And Others

JUDGMENT

Ismail, J.

1. The first claimant in O.P No. 140 of 1965 on the file of the Court of the Subordinate Judge of Tiruchirappalli which arose out of a reference made under Ss. 30 and 31(2) of the Land Acquisition Act, 1894 (1 of 1894) hereinafter referred to as the Act, is the appellant herein. An extent of 44 acres and 35 cents in S.F Nos. 1/5B and 1/6 in K. Sathanur village was acquired by the Revenue Divisional Officer, Tiruchirappalli for construction of a Central Godown at Tiruchirappali for the storage of foodgrains. By an award, 24th April 1965, the Collector awarded compensation at the rate of Rs, 1,600/- per acre, and the total amount of compensation inclusive of the statutory solatium and interest from the date of taking possession came to Rs. 97,977.94. As the lands acquired stood registered in the names of Peerdhan Jugarmal Sait, the father of the appellant herein, the 4th Respondent herein (the 4th claimant) and the 5th Respondent herein (the 5th claimant), the Collector referred the matter to the Court under S. 30 of the Act for apportionment of the compensation among the persons interested and deposited the amount into the Court. The appellant herein filed a claim statement through his Advocate on 11th November 1965 to the effect that he was entitled to 10 acres out of 22 acres and 34 cents, acquired in S.F No. 1/5B inclusive of the well portion, and that therefore, the compensation amount for that portion should be paid to him. He filed I.A No. 218 of 1966 on 16 July 1966 for permitting him to file an additional claim statement, the effect of the same being to substitute the new statement for the earlier claim statement filed by him through the Advocate. In the Additional claim statement sought to be filed, his case was that the entire required land continued to be in his possession, and the court auction purchaser Jayalakshmi Ammal never took possession of the said extent either through court or personally. Therefore, according to the appellant, she had no right or title to the said extent of lands, and the settlement deeds executed by her in favour of claimants 2 and 3 (respondents 2 and 3 herein) were not of any effect, and the settlees themselves were never in possession, and therefore, the entire compensation in court deposit should be paid over to him. Respondents 2 and 3, who are claimants 2 and 3, by their power of attorney agent, Jayalakshmi Ammal, who is their mother, filed a claim statement wherein they stated that their mother, Jayalakshmi Ammal, purchased 91 acres of land in Sathanur village inclusive of the lands acquired, in court auction in 1951, that the sale was confirmed in her favour on 21 July 1952 by this Court in O.S.A Nos. 143 and 144 of 1952 and that the sale certificate, Ex. B-8 was issued to Jayalakshmi Ammal on 18 August 1952. It was further stated that out of the said 91 acres purchased by Jayalakshmi Ammal, she settled 76.77 acres on her three sons and sold 4 acres 91 cents to the 4th respondent herein (the 4th claimant) on 23rd April, 1956. Therefore, according to Respondents 2 and 3, out of the lands acquired, barring 4.91 acres sold by Jayalakshmi Ammal to the fourth respondent herein the rest belonged to them, and therefore, they were entitled to the compensation amount referable to the said extent. The 4th respondent in his claim statement had stated that on 23rd April, 1956 he had purchased 4-91 acres out of the lands acquired by the Government, and therefore, he should be paid compensation for that extent. The 5th respondent stated that he was an unnecessary party to the proceedings and that respondents 2, 3 and 4 alone were entitled to the amount with reference to their respective shares. The learned Principal Subordinate Judge disposed of the original petition on 12th December 1966. He dismissed I.A No. 218 of 1966 filed by the appellant herein. With regard to the claims of the appellant and respondents 2 to 4, the learned Principal Subordinate Judge came to the conclusion that Jayalakshmi Ammal, the court auction purchaser took possession of the properties, and therefore, she bad title to the acquired lands, and that consequently, she was competent to sell 4.91 acres to the fourth respondent herein and settle the balance on her sons, namely, respondents 2 and 3 herein. In the result, he apportioned the compensation amongst respondents 2 to 4 by directing payment of Rs. 88,823.49, less process charges to respondents 2 and 3 herein and Rs. 9,154.11 less process charges to the fourth respondent herein. It is against this order of the learned Principal Subordinate Judge that the present appeal has been preferred by the first claimant in the said original petition.

[The discussion of facts is omitted:—Ed.]

7. Hence, there are no merits in this appeal and the same is liable to be dismissed.

8. After the hearing of the appeal was over and when we were about to dictate our judgment, we noticed that the memorandum of appeal in this case bore a court-fee of Rs. 200.50 only. We felt that the proper court fee had not been paid on the memorandum of appeal, and therefore, we asked the learned counsel for the appellant to convince us that the proper court fee had been paid on the said memorandum of appeal; and we gave time for that purpose. When the matter came up before us again on 28th June, 1973, we directed notice to the Government through the Government Pleader, and posted the matter to 2nd July, 1973. On that day, the learned Additional Government Pleader appeared for the Government and we heard the counsel for the parties on the question of proper court-fee payable on the memorandum of appeal. When the appeal was presented to this Court, the office appears to have returned the memorandum of appeal for payment of proper court-fee, and the appellant's counsel took up the stand that the appeal had to be valued under S. 25(d) of the Madras Court-fees and Suits Valuation Act, Madras Act 15 of 1955, here in after referred to as the Madras Act. The learned counsel further took up the stand that in any event, the case might at best be covered by S. 50 of the Madras Act, as a suit not otherwise provided for, and filed in the Sub Court, and a fixed court-fee of Rs. 200/- was payable. That is how, the court-fee of Rs. 200.50 has been paid on the memorandum of appeal, even though the memorandum of appeal has stated that the value of the subject-matter of the appeal is, “the amount deposited in the lower Court against which declaration is sought for, namely Rs. 97,977.94”. It further stated that “court-fee paid under S. 50(iii) of the Madras Act—Rs. 200.50”. Even before us, the learned counsel for the appellant contended that the memorandum of appeal was to be valued either under S. 25(d) or under S. 50 of the Madras Act. On the other hand, the learned Additional Government Pleader contended that the appeal has to be valued, and the court-fee has to be paid ad valorem. We shall now consider the question as to the proper court-fee payable on the memorandum of appeal. We may immediately mention that the learned counsel for the appellant did not challenge our jurisdiction to go Into the correctness of the Court-fee payable on the memorandum of appeal at this stage.

9. The contention as to the correct Courts fee payable on the memorandum of appeal requires reference to the relevant provisions of the Land Acquisition Act itself. S. 11 of the Act deals with the enquiry to be made by the Collector and the award to be passed by him. This Section states that the Collector shall make an award under his hand stating the following three matters: (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. According to S. 12, such an award shall be filed in the Collector's Office. S. 18 provides for reference to Court. As per this Section, any person Interested who has not accepted the award, may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. S. 19 requires the Collector to make the reference giving the necessary particulars, if the demand for reference was made within the time prescribed. S. 26(1) stated that every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded together with the grounds for awarding the said amount. Sub-S. (2) of this Section which was introduced by the Amendment Act passed in 1921 provided:

“Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of S. 2, Cl. (2) and S. 2 Cl. (9) respectively of the C.P.C (1908). V of 1908.

Ss. 18 to 28 are found in Part III of the Act. Part IV consists of only two Sections, namely, Ss. 29 and 30. S. 29 provides that where there are several persons interested, if such persons agree In the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the award shall be conclusive evidence of the correctness of the apportionment. S. 30 provides that when the amount of compensation has been settled under S. 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. Ss. 31 to 34 find place in Part V. S. 31(1) states that on making an award under S. 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. Sub-S. (2) of S. 31 states:

“(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of its the Collector shall deposit the amount of the compensation in the Court to which a reference under under S. 18 would be submitted:

Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount; Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under S. 18;

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.”

Ss. 32, 33 and 34 deal with investment of money deposited in respect of lands belonging to persons incompetent to alienate, investment of money deposited in other cases and payment of interest. The only other Sections in the Act which require notice are Ss. 53 and 54. S. 53 states that save in so far as they may be inconsistent with anything contained in this Act, the provisions of the C.P.C, (XIV of 1892) shall apply to all proceedings before the Court under this Act. S. 54 is as follows:

“54. Subject to the provisions of the C.P.C, 1908 (V of 19081 applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in S. 110 of the C.P.C, 1908 (V of 1908) and in O XLV thereof.”

With reference to the above provisions, we may point out that though the Act itself has not defined the word “award” the said word has been used not only with reference to the order that the Collector passes under S. 11, but also with reference to the Order of the Court passed on reference made to it under S. 18. Further, sub-S. (2) of S. 26 makes is clear that an award passed by the Court only under Part III of the Act, namely, on a reference made to it under S. 18 of the Act shall be deemed to be a decree, and the statement of grounds of every such award shall be deemed to be a judgment within the meaning of S. 2, Cl. (2), and S. 2, Cl. (9) respectively of the C.P.C Consequently, an order passed by a Court on a reference made under Ss. 30 and 31(2) of the Act is not designated as an award by the Act, and even otherwise, an order passed by a Court on a reference made under S. 30 occurring in Part IV and S. 31(2) occurring in Part V will not be governed by S. 26 which occurs in Part III and expressly refers to an award in that part, and consequently, cannot be deemed to be a decree, and the statement of grounds of such an order cannot be deemed to be a judgment within the meaning of S. 2, Cl. (2) and S. 2, Cl. (9) respectively of the C.P.C 1908. Hence, S. 54 of the Act providing for an appeal from an award or from any part of the award cannot apply to an order passed by a Court on a reference under Ss. 30 and 31(2), since such an order has not been designated as an award by the Act. Therefore, the question that arises for consideration is, under what provision of law, an appeal is available against an order made by the Court on a reference under Ss. 30 and 31(2) of the Act.

10. That question has been considered by a Bench of this Court in A. Mahalinga Kudumban and others v. Theetharappa Mudaliar(1). The Bench pointed out that the decision of a Court as to the rights of the contending parties on a reference under S. 30 of the Act cannot be said to be an award, and therefore, S. 54 is not applicable to such a case. However, the Bench proceeded to hold, on general principles, that an appeal would be available. The Bench rested its conclusion on two alternative grounds. One was, though S. 26(2) of the Act itself would not apply to an order passed by a Court on a reference under Ss. 30 and 31(2) of the Act, still such an order would be a decree within the meaning of S. 2(2), C.P.C The Second was, apart from the question whether such an order amounts to a decree or not, when proceedings are before a civil court, such proceedings are governed by the usual procedure applicable to such court and as the reference under S. 30 is to the Court, the right of appeal given by S. 96, C.P.C, unless expressly taken away, would attach to such proceedings, and S. 53 which makes the C.P.G applicable to proceedings before the Court does not take away the right under the C.P.C The above Bench decision was followed by another Bench of this Court in Janapareddi Venkatareddi v. Janapareddi Adhinarayana Rao. Though the reasoning of the Bench in A. Mahalinga Kudumban and others v. Theetharappan Mudalliar(2) was dissented from by a Full Bench of this Court in N.K.R.M Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras, represented by its President R. Surya Rao and four others(3) the correctness of the said reasoning and conclusion of the Bench was restored by a subsequent Full Bench of this Court in Chikkanna Chettiar v. V.S. Perumal Chettiar(4). In view of the above decisions, it is unnecessary to consider the decisions of other Courts bearing on this point.

11. The next question for consideration is, what exactly is the court-fee payable on the memorandum of appeal, in cases where an appeal is preferred against an order of Court made on a reference under Ss. 30 and 31(2) of the Act, The decision referred to above, namely, A. Mahalinga Kudumbon and others v. Theetharappa Mudaliar deals with this question as well. The decision dealt with the Court fees Act, 1870, namely, the Central Act 7 of 1870 here in after referred to as the Central Act. It held:

“S. 8 cannot apply to this case as this is not an appeal against an award S. 8 refers specifically to the amount awarded to and the amount claimed by the appellant There is no dispute here as regards the amount of compensation awarded, S. 8 can only apply to cases where the claimant claims more than the amount awarded by the Lower Court. If S. 8 is not applicable the only other provision of the Court-fees Act applicable to a case like this is Art. I of the first schedule, namely, ‘plaint or Memorandum of Appeal (not otherwise provided for in this Act;’. There is no specific provision as regards appeals in such cases as these, and therefore, the court-fee payable is the ad valorem tee. It has been the practice of this Court to demand ad valorem fee in appeals under the land Acquisition Act and the practice is the same in the Allahabad High Court as is clear from Sheo Rattan Rai v. Mehri(5) See also Shrimati Trinavani Dasi v. Krishna Lal(6).

The view taken by the above decision was followed by another Bench of this Court in Chintakayala Thammayya Naidu v. Chintakayala Venkatarmammma and another(7) and that case dealt with an application for refund of court fee said to have been paid in excess of the requirement on the memorandum of appeal. On a reference by the Land Acquisition Officer made under S. 18 of the Act, the District Judge held that the claimant who was a widow was entitled to a life interest in the compensation money awarded for the melwaram, but on account of the limited interest held by this widow, he ordered under S. 32 of the Act the money to be invested in the Imperial Bank. The petitioner therein, who was the second claimant appealed claiming that the compensation was payable to him alone. He paid a court fee ad valorem of Rs. 2,332-7-0 on the amount of the award. But the petitioner, by the petition in question claimed that the proper court-fee was as for a mere declaration, and that Rs. 500 would have been sufficient, and therefore, claimed a refund of the difference. This Court held:

“It cannot be doubted that as a general principle where a successful claimant before the District 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.”

They relied on the decision in A. Mahalinga Kudumban and others v. Theetharappa Mudaliar, in support of their conclusion. But; they held that the particular case before them would not fall within the general principle, because:

“The widow never got possession and never could get possession of the principal amount. The possession and control of it lies with the District Court, and the property is in custodia legis.”

They also pointed out that 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 cours-fee ad valorem on that, but that question did not arise before them. In this view, they held that in that particular case ad valorem court-fee was not payable. No other decision of this Court bearing on this point was brought to our notice.

12. But, decisions of certain other High Courts were brought to our notice. In Muhamad Suleman and another v. Ghamandi Lal and others, a single Judge of the Lahore High Court took the view that in an appeal by a co-sharer from an order directing compensation to be made to certain persons for a share in the compensation amount, ad valorem fee was to be paid on the amount of compensation claimed in the appeal.

13. In re Ananda Lal Chakrabutty and others is a decision of Rankin, G.J on a reference made under the Court-fees Act. That also was a case of apportionment of compensation amount. The learned Chief Justice came to the conclusion that it was ad valorem court-fee that was payable on a memorandum of appeal against a decision of apportionment of compensation. However, the learned Chief Justice held that it was S. 8 read with Art. 1 of the first Schedule of the Central Act that would apply. The learned Chief Justice further held that it was Art. I of the first Schedule that put a charge upon a plaint or memorandum of appeal not otherwise provided for in the Central Act, and the purpose of S. 8 was to say that when you come to make a charge under Art. I, Schedule I, 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. The learned Chief Justice observed:—

“It is clear enough that S. 8 necessarily involves that there is an ad volorem charge laid down either under S. 4 or under S. 6 and contained in Sch. I…The object of S. 8 is not to impose an ad valorem charge; it assumes that that has already been done. …..

S. 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. The business of the Section is not therefore, to impose an ad valorem charge but on the assumption that the Act has already made an ad valorem charge to say that it is to be charged upon him in that particular way ……… Nevertheless the sanction has to be taken into account when one is construing the Act as a whole and, on the face of that section, I have no doubt at all that an ad valorem fee is chargeable under Art. I, Seh. I, Court-fees Act,”

For the purpose of understanding this conclusion of the learned Chief Justice, it is necessary to refer to the relevant provisions of the Central Act.

14. S. 4 of that Act provided that no document of any kinds specified in the first or second schedule to the Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its jurisdiction referred to therein, unless in respect of such documents there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. S. 6 stated that except in the courts already mentioned no document of any of the kinds specified as chargeable in the first or second schedule to the Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. S. 7 dealt with the computation of fees payable in enumerated suits. S. 8 provided:

“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”.

The document coming within the scope of Art. I, Sch. 1 dealing with ad valorem court-fees is as follows:

“Plaint or written statement, pleading a set-off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) presented to any Civil or Revenue Court except those mentioned in S. 3”.

With reference to these provisions, the reasoning of the learned Chief Justice was that S. 8 itself was not a charging Section, that it was S. 4 or S. 6 read with Art. 1, Sch. I which imposed a charge and that S. 8 merely dealt with the computation of fee payable on the memorandum of appeal in the particular case. However, what is to be noted for the present purpose is that the learned Chief Justice held that on the basis of S. 8 read with Art. 1, Sch. I of the Central Act, it was the ad valorem court-fee that was payable on a memorandum of appeal.

15. We have already referred to the decision of this Court in A. Mahalinga Kudumban and others v. Theetharappa Mudaliar holding that S. 8 can apply only to a case where the quantum of compensation is in dispute, and it does not apply to a case where an appeal is preferred against the order apportioning the amount of compensation fixed by the Collector. However, the learned Chief Justice in In re Anandalal Chakrabatty and others took a different view. The learned Chief Justice pointed out:

“The section dealing with the amount of fee payable makes a comparison between two things the amount awarded and the amount claimed by the appellant. 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. 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”.

In the view of the learned Chief Justice, what is relevant is, what was claimed by the particular individual and what was awarded to him and not what was awarded by way of compensation for the acquired land as such.

16. A single Judge of Patna High Court in Braja Kewat & Another… v. Madanlal Agarwalla & Others… held that it was Art. 1 of Sch. I of the Central Act that applied to such appeals, and therefore, ad valorem Court-fee was payable. The learned Judge pointed out:

“According to the claim of the appellant, they are entitled to the entire amount of compensation awarded. According to the decision, which they challenge and are trying to set aside, they are entitled to nothing. Hence the value of the appeal is the entire amount of the compensation awarded.

17. The Judicial Commissioner of Himachal Pradesh had to consider this question in Smt. Vindhya Basani v. Jadab Singh. He referred to the various decisions of the High Courts and agreed with the reasoning and conclusion of Rankin, C.J in re Ananda Lal Chakrabutty and others and held that it was S. 8 read with Art. 1, Schedule 1, Schedule I of the Central Act that would apply, and therefore, ad valorem court-fee was to be paid on a memorandum of appeal.

18. Rash Behari Sanyal… v. Gosto Behari Goswami…. is a decision of a single Judge (Costello, J.) of the Calcutta High Court. In that case the contest was between an alienee from a Hindu widow and the reversioners of her husband, in respect of compensation awarded for acquiring the property of the husband, the latter contending that the alienation was not justified by necessity, and therefore, the compensation should be invested under S. 32 of the Act so that the same might be available to them on the death of the widow. The President of the Calcutta Improvement Tribunal having held that the sale was for legal necessity, and therefore, the purchaser had acquired absolute interest in the property and was entitled to the entire compensation. The reversioners preferred an appeal. The question arose as to the amount of court-fee payable on the said appeal. The learned Judge (Costello, J.) held:

“It is quite clear in my opinion that the dispute between the Sanyals and Gosto Behari Goswami cannot in any case be properly said to be considered with the amount of compensation payable by reason of the compulsory acquisition of the property owned by Bhuban Mohini, (the widow. The Sanyals in the proceedings before the President of the Improvement Tribunal were really asking for a declaration and some consequential relief, namely that the money should be invested instead of being handed over to Goswami. In that view of the matter this would seem to be one of that unsatisfactory class of cases, which fall within the provisions of S. 7, Sub-S. 4(c), where the amount of fee payable if more or less left to the discretion of the plaintiffs himself, in that the section provides that in suits brought to obtain a declaratory decree or order, where consequential relief is prayed, the plaintiff shall state the amount at Which he values the relief sought “

This judgment did not refer to the decision of Rankin, C.J in In re Ananda Lal Chakrabutty and others referred to already.

19. Another single Judge (Bijayesh Mukherji, J.) of the Calcutta High Court had to consider this question in Kali Gopal Chatterjee v. T. Banerjee and others. He elaborately considered all the prior decisions and agreed with the view of Rankin, C.J, expressed in In re Ananda Lal Chakrabutty and others. The learned Judge also reconciled the decision of Costello, J. in Rash Behari Sanyal… v. Gosto Behari Goswami…. with that of Rankin, C.J, in In re Ananda Lal Chakrabutty and others by pointing out that the decision of Costello J. in Rash Behari Sanyal… v. Gosto Behari Goswami…. fell within the exception to the general principle recognised by this Court in Chintakayala Thammayya Naidu v. Chinta kayala Vekataramanamma and another. In the result the learned Judge held that it was ad valorem court-fee that was payable on the memorandum of appeal under S. 8 reed with Art. 1, Sch. I of the Central Act. The learned Judge also held that an appeal against an order of apportionement would come within the scope of S. 8.

20. The only decision which has taken a view different from the view taken by all the above decisions, namely, that it is the ad valorem court fee that is payable on a memorandum of appeal against an order of apportionment is that of the High Court of Rajastan in Hakim Martin De Silava v. Martin De Silva II and others. The Court held that the court fee payable was a fixed court fee under Sch. II, Art. 17(iii) of the Central Act on the basis of the relief being one for a declaration. The learned Judges, observed.

“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”

This decision was noticed and not followed by the Judicial Commissioner, Himachala Pradesh in Smt. Vidhya Basant v. Jadab Singh referred to already and by Bijayesh Mukherji J. in Kali Gopal Chatterjee v. T. Banerjee and others.

21. The decision of the High Court of Delhi in Mangal Sen v. Union of India is not of any assistance, because that case dealt with the acquisition of land under the Resettlement of Displaced Persons (Land Acquisition Act, 1948, which constituted a totally different scheme.

22. If the matters have stood there, we are bound to follow the decisions of this Court in A. Mahalinga Kudumban and others v. Theetharappa Mudaliar and Chintakayala Thammayya Naidu v. Chintakayala Venkataramanamma and another and hold that ad valorem court-fee is payable on the memorandum of appeal in the present case. However, the Madras Act has replaced the Central Act as far as this State is concerned, except with regard to fees and stamps relating to documents presented or to be presented before an officer serving under the Central Government. Therefore, the question for consideration is, whether this has made any difference.

23. In our opinion though the provisions contained in the Madras Act are more elaborate and detailed, they do not make any difference with regard to the present position. S. 51 of the Act corresponds to S. 8 of the Central Act. This Section provides:

“The 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 property for public purposes shall be computed on the difference between the amount awarded and the amount claimed by the appellant.”

Except for the use of the word ‘property, in this section in the place of the word, ‘land’ in S. 8 of the Central Act and for two verbal changes, this Section does not materially differ from S. 8 of the Central Act. The document mentioned in Art. 1, Schedule I dealing with ad valorom fees in the Madras Act is, “plaint or written statement pleading a set off or counter-claim or memorandum of appeal presented to any Court”. Here again, except for the omission of the expression ‘not otherwise provided for’ in this Act occurring in the Central Act and for the use of ‘any Court’ in the place of ‘any Civil or Revenue Court except those mentioned in S. 3’ occurring in the Central Act, there is no material change between the two provisions. We are of the opinion that the omission of the expression ‘not otherwise provided for’ in this Act in the Madras Act does not alter the position at all, because, even if the said expression is present in the Madras Act the result will be the same.

24. S. 21 occurring in Chapter IV of the Madras Act states that the fee payable under this Act shall be determined or computed in accordance with the provisions of this chapter. Chapter VI, Chapter VIII and Schedules I and II. Consequently, we shall have to see whether the present case falls within the scope of any of the provisions contained in Chapter IV, Chapter VI, Chapter VIII and Schedules I and II. The learned counsel for the appellant relied on only two sections in the Madras Act, namely, Ss. 24 and 50, as relevant in this context. S. 25 deals with suits for declaration and S. 50 deals with suits not otherwise provided for. In our opinion, neither of these provisions will apply to the present case. In the first place, the proceedings before the lower Court, on a reference made under Ss. 30 and 31(2) of the Act cannot be treated as a suit, as contemplated by the Madras Act. As a matter of fact, the Court acquires jurisdiction to deal with the matter only on a reference made by the Collector under the Act, and therefore, such a proceeding cannot be equated with a suit, even though the order passed by the Court may be considered to be a decree, having regard to fact that it decides the civil rights of parties. On the other hand, when the matter comes before the appellate court, on an appeal against the order of the lower Court apportioning the compensation, the principle applicable is as enunciated by this Court in Chintakayala Thammayya Naidu v. Chintakayala Venkataramanamma and another already referred to, namely, where a successful claimant before the District 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. Therefore, the appeal is in the nature of a claim to recover the money from the respondents in whose favour the order has been made by the lower Court, and therefore, the appeal has to be valued for ‘the amount so claimed and the court-fee has to be paid ad valorem on the said amount.

25. Secondly, Ss. 25 and 50 as such apply only to suits and not to appeals. The Section applicable is S. 52, which, omitting the proviso and explanations, which are not relevant for this appeal is as follows:

“The fee payable in appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal.”

As we pointed out already, the subject matter of the appeal is the right of the appellant to recover the amount of the entire compensation from the successful claimants, namely, respondents 2 to 4 herein. It is indisputable that on such a subject-matter in the court of first instance, the fee payable would be ad valorem on the amount of compensation. On the other hand, instead of considering such a notional situation, if we consider what actually happened in the lower Court, no court-fee will be payable on the appeal at all, since in the lower Court there was only a reference made by the Collector under the Act, and neither the appellant nor the respondents 2 to 4 herein were under an obligation to pay and did pay any court-fee. Very naturally that is not the contention of the appellant before us. In this context, the expression in the section “the fee that would be payable in the Court of first instance” is significant. Thus, none of the specific provisions in Chapters IV, Viand VIII and in Suhedule II and no other provision in Schedule I being applicable to the appeal in question, we hold that Article 1 of the Schedule I applies to this appeal. It is because of this alone, we observed earlier that the omission in this Article of the expression, “not otherwise provided for in this Act occurring in Article I of Schedul I to the Central Act”, does not make any difference, since if any one of the other provisions applied, this provision cannot apply on the principle that the application of a special provision excludes the applicability of the general provision.

26. Mr. Palaniappan, learned counsel for the appellant then contended that this Court may dismiss the appeal on the ground that proper court-fee has not been paid. The object of this argument was that the appellant should not be compelled to pay the deficit court-fee. We are unable to accede to this request at this stage. We have already pointed out that after the appeal was heard, and we decided to dismiss the appeal on merits and when we were about to dictate our judgment, we noticed the actual court-fee that has been paid on the memorandum of appeal. Therefore, at this stage, there is no question of giving time to the appellant to pay the deficit court-fee and on his failure to do so, dismissing the appeal on the ground or treating that proper court-fee has not been paid, and hence, dismissing the appeal on that basis. S. 20 of the Madras Act states;

“In any inquiry relating to the fee payable on applaint written statement, petition, memorandum of appeal or other document, or to the valuation of the subject-matter of the claim to which the plaint written statement, petition, memorandum of appeal or other document, relates, in so far as such valuation affects the fee payable, the Court, may, if it considers it just or necessary to do so, give notice to the State Government; and where such notice is given, the State Government shall be deemed to be a party to the suit or other proceeding as respects the determination of the question or questions aforesaid; and the Court's decision on such question or questions shall, when it passes a decree; or final order in such suit or proceedings, be deemed to form part of such decree or final order,”

It is with reference to this Section, we gave notice to the Government through the Government pleader, and consequently, this Section will have effect.

27. The result is, the appeal fails and is dismissed with costs of respondents 2 to 4. The appellent will pay the deficit court-fee to the Government on the basis that the Court-fee payable on the memorandum of appeal ad valorem, on the entire compensation deposited into Court, namely Rs. 97,977.94.

V.C.S

Loomchand Sait v. The Revenue Divisional Officer, Tiruchirapalli And Others

Structured Summary of the Opinion (Ismail, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Government / Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Loomchand Sait v. The Revenue Divisional Officer, Tiruchirapalli And Others

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