C.G. Ghanshamdas & Ors Vs.
Collector of Madras [1986] INSC 189 (12 September 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) KHALID, V. (J)
CITATION: 1987 AIR 180 1986 SCR (3) 754 1986
SCC (4) 305 JT 1986 432 1986 SCALE (2)414
ACT:
Tamil Nadu Court Fees & Suits Valuation
Act, 1955, s.51 and Article 3(iii) (A) (1) (a) of Schedule 11-Memorandum of
Appeal u/s. 11 of Requisitioning Act, 1952-Court feeComputation and payment of.
Requisition & Acquisition of Immovable
Property Act, 1952, ss. 3, 5, 7-Requisition and acquisition of PropertyDistinction
between.
Words & Phrases 'order' Meaning of.
HEADNOTE:
The property of the appellants continued to
remain under requisition by virtue of the several amendments made to the Requisitioning
and Acquisition of Immovable Property Act 1952 and the compensation payable in
respect of it was required to be revised for a period of 5 years from 7.3.75 to
6.3.1980. As there was no agreement between the parties on the question of
compensation payable for the said period, the said question was referred to an
arbitrator under s. 8 of the Requisitioning Act to determine the compensation
payable. The arbitrator by his award fixed the compensation payable for the
property at Rs.21,000 per month as against the claim of Rs.77,270 per month
made by the appellants.
Aggrieved by the decision of the arbitrator
the appellants filed an appeal before the High Court of Madras under s.11 of
the Requisitioning Act. The Registry of the High Court raised an objection
regarding the amount of court fee paid on the memorandum of appeal. The matter
was placed before the Division Bench of the High Court and it held that the
appellants were liable to pay court fee on the memorandum of appeal under s. 51
of the Tamil Nadu Court Fees and Suits Valuation Act 1955 (for short, the Act)
ad valorem on the amount of compensation which was in dispute in the appeal.
In appeal to this Court, the appellants
contended that the amount 755 of court fee payable on a memorandum of appeal
filed under s. 11 of the Requisitioning Act should not be computed in
accordance with s. 51 of the Act as a fixed court fee was payable under the
residuary provision, that is, Art. 3 (iii) (A) (1) (a) of Schedule II of the
Act. In support of this contention the appellants raised two points; (i) that
since there is no transfer of title to the property which is requisitioned from
its owner to the Government, the said transaction is not an acquisition and
hence those provisions of the Requisitioning Act under which the property is
requisitioned do not constitute a law providing for acquisition of property and
therefore, s. 51 of the Act would not be applicable because it relates only to
appeals filed against an order relating to compensation under any Act for the
time being in force for the acquisition of land;
and (ii) that the award made by the
arbitrator under s. 8 of the Requisitioning Act not being an 'order' as defined
in the Code of Civil Procedure 1908, the appellants cannot be called upon to
pay court fee in accordance with s. 51 of the Act since s. 51 refers to court
fee payable on a memorandum of appeal against an 'order'.
Dismissing the appeal, ^
HELD: 1. The appeal before the High Court
filed under s. 11 of the Requisitioning Act falls squarely under s. 51 of the
Act. Therefore, the court fee has to be paid on ad valorem basis as provided in
Art. 1 of Schedule I to the Act. It follows that the residuary Article, that
is, Art.
3(iii) (A) (1) (a) of Schedule II to the Act
is not attracted. [769E-F] 2(i) Section 3 of the Act states that in the Act
'unless the context otherwise requires' the words and expressions defined in
that section shall carry the meaning given to them in various clauses in that
section. It is relevant to note that in section 51 of the Act which arises for
consideration the word 'order' does not appear in isolation. The section states
that the fee payable under the Act on a memorandum of appeal against an order
relating to compensation in 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 appellants. The
'order' referred to in s. Sl of the Act need not be an 'order' of a civil court
as defined in s. 2(14) of the Code of Civil Procedure but should be an 'order'
relating to compensation under any Act for the time being in force for the
acquisition of property for public purposes. [768G-H; 769A-C] 2(ii) There is no
doubt that the award passed by the Arbitrator 756 under the Requisitioning Act
is a formal expression of a decision made by a competent authority which is
binding on the parties and it relates to compensation payable under an Act for
the time being in force for the acquisition of property for the public
purposes. Therefore, even though the expression 'order' simpliciter has to be
understood in the sense in which that expression is defined in s. 2 (14) of the
Code of Civil Procedure, the word 'order' found in s. 51 of the Act bas to be
read differently having regard to the words which qualify that expression in
that section, namely, 'relating to compensation under any Act for the time
being in force for the acquisition of properties'. The said order need not be
an order of a civil court only. It can be of any statutory authority. But it
must determine compensation for a property acquired under a law of acquisition
of property for public purpose. In the instant case, the award made under s. 8
of the Requisitioning Act satisfies these tests.
[769C-E] Sahadu Gangaram Bhagade v. Spl.
Deputy Collector, Ahmedanagar & Anr., [1971] 1 S.C.R. 146, relied upon.
Y. Venkanna Choudhary v. Government of India,
by Military Estates officer, Madras & Anr., AIR 1976 Madras 41,
Laxshminarayana Rao & Ors. v. Revenue Divisional officer, Kakinada &
Ors., A.I.R. 1968 Andhra Pradesh 348, M.
Ramachandran & Ors. v. State of Madras
represented by the Collector, Coimbatore, 87 Law Weekly Madras 791,
Balakrishnan Nambiyar & Ors. v. Kanakathidathil Madhavan & Ors., A.I.R.
1979 Kerala 40 & Ghouse Saheb v. Sharifa Bi & Ors., A.l.R. 1977
Karnataka 181, approved.
Hirji Virji Jangbari v. Government of Bombay,
A.I.R.
1945, Bombay 348, Kanwar Jagat Bahadur Singh
v. The Punjab State, Crown's case, A.l.R. 1957 Punjab 32 Crown v.
Chandrabhanlal and Ors., AIR. 1957 Nagpur 8
and Mangal Sen v. Union of Indian A.l.R., 1970 Delhi 44, disapproved.
3(i) The expression 'acquisition' is not
defined in the Act. Sections 3 to 6 of the Requisitioning Act deal with the
powers of the Government in respect of requisitioning of property and section 7
of that Act confers power on the Government to acquire a property which has been
requisitioned. Whenever a property is requisitioned by the competent authority
it is entitled to call upon the owner or any other person who may be in
possession of the property to surrender possession thereof to the Government.
Section 5 of the Requisitioning Act provides that all properties requisitioned
under section 3 shall be used 757 for such purposes as may be mentioned in the
notice of requisition. Such requisitioned property may be released from
requisitioning under section 6. The title to property requisitioned under the
Requisition Act continues to rest with the owner, the Government being entitled
to only the possession of such property. [761 B-E] 3(ii) Not only is a right to
possession a right of property, but where the subject of proprietary rights is
a tangible thing, it is the most characteristic and essential of those rights.
Possession, it is said, is nine points in law. An owner without possession has
only a mere shell while the person in possession enjoys the property in many
ways.
In this situation, it is difficult to say
that there cannot be deprivation of property without deprivation of title also.
Deprivation of possession for an indefinite period is acquisition of property
during that period though the title may continue to rest with the owner. That
is why the requisitioning law also had to satisfy Art. 19(1) (f) and Art. 31 of
the Constitution when they were in the Constitution. [764B-D] 3(iii) The
Supreme Court has treated both requisitioning of property and acquisition of
property as meaning the acquisition of property in the large sense and there is
no reason to depart from the views expressed by the two Constitution Benches of
this Court in the State of West Bengal v. Subodh Gopal Bose and Ors,. 1954
S.C.R. 587 and Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning &
Weaving Co. Ltd. and Ors., [1954] S.C.R. 674.
The Minister of State for the Army v.
Dalziel, 68 C.L.R. 261, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3040 of 1986 From the Judgment and order dated 24.6.1985 of the Madras High
Court in S.R.No. 106081 of 1984.
Soli J. Sorabjee, Joel Peres and D.N. Mishra
for the Appellants.
Abdul Khader, T.V. Ratnam and A.V. Rangam for
the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The short question which arises for 758 consideration in this
appeal is whether under the Tamil Nadu Court-Fees and Suits Valuation Act, 1955
(hereinafter referred to as 'the Act') the court fee payable on a memorandum of
appeal filed under section 11 of the Requisitioning and Acquisition of
Immovable Property Act, 1952 (Act 30 of 1952) (hereinafter referred to as 'the
Requisitioning Act') should be computed in accordance with section 51 of the
Act or a fixed court fee is payable under the residuary provision that is
Article 3 (iii) (A) (1) (a) of Schedule II to the Act.
The appellants claim to be the co-owners of
the land and building bearing Door No. 745 E.V.R. Periyar High Road
(Poonamallee High Road), Kilpauk, Madras. The land along with the building
standing thereon was originally requisitioned under the provisions of the
Requisitioning Act for the purpose of accommodating the NCC Headquarters
through the Collector of Madras. The above property was taken possession of on
9.2.1963. In order to fix the compensation for the period of five years
beginning from 9.6. 1963 to 20.2.1967, an Arbitrator was appointed. The
Arbitrator by his award dated 5.1.1970 fixed the compensation at Rs.6000 per
month and the compensation was being paid accordingly.
At this stage it is necessary to refer to the
history of the Requisitioning Act. The power to requisition and to acquire
immovable property for a public purpose was first provided in the Defence of
India Act, 1939 which expired on the 30th September, 1946. It was, however,
found necessary to retain some of the properties for a longer period in the
occupation of the Government. Therefore, it was provided in the Requisitioned
Land (Continuance of Powers) Act, 1947 that any property which had been
requisitioned under the Defence of India Act, 1939 would continue to remain
under requisition. Subsequently, the Requisitioning and Acquisition of
Immovable Property Act, 1952 that is the Requisitioning Act with which we are
concerned in this case was passed in the year 1952 to confer powers on the
Government in this regard. The Act was initially to operate for a period of six
years but its duration was extended from time to time. The Requisitioning and
Acquisition of Immovable Property (Amendment) Act, 1970 made the Requisitioning
Act a permanent measure but restricted the period for which a requisitioned
property could be retained under requisition to three years from the
commencement of the above said Amendment Act in the case of properties
requisitioned before such commencement and in the case of any other property
requisitioned after such commencement to three years from the date on which
possession of such 759 property was surrendered or delivered to or taken by the
competent authority under section 4 of the Requisitioning Act. Thus properties
requisitioned before the commencement of the said Amendment Act could be
retained under requisition up to the 10th March 1973. A large number of
properties requisitioned under the Requisitioning Act could not be released by
the said date and the maximum period for which properties could be kept under
continued requisition was extended for a further period of two years by the
Requisitioning and Acquisition immovable Property (Amendment) Act, 1973. A
number of properties requisitioned under the Requisitioning Act were still in
possession of the Ministry of Defence and also some other Ministries. Although
the Government was expeditiously implementing the policy of acquiring or
de-requisitioning the requisitioned properties, a large number of them were
expected to be needed by the Government even after the 10th March, 1975 for
public purposes. On many of the properties valuable constructions of a
permanent nature connected with the national defence or the conduct of military
operations or other important public purposes had been put up. Due to financial
stringency, it was not possible either to acquire the properties or take up
large scale construction programmes in the immediate future to enable the
Government to release the requisitioned properties. It was, therefore, found
necessary to keep the properties under the continued requisition for a longer
period. Parliament, therefore, passed the Requisitioning and Acquisition of
Immovable Property (Amendment) Act, 1975 (Act 11 of 1975) by which it amended
the Requisitioning Act so as to extend by five years the existing maximum
period for which properties could be retained under requisition and to provide
for quinquennial revision of the recurring part of compensation .
The property in question by virtue of the
several amendments made to the Requisitioning Act continued to remain under
requisition and the compensation payable in respect of it was required to be
revised as provided by the Requisitioning Act as amended by Act II of 1975 for
a period of five years from 7.3.1975 to 6.3.1980. As there was no agreement
between the parties on the question of compensation payable for the said period
the said question was referred to the Principal Judge, City Civil Court, Madras
who had been appointed as the arbitrator under section 8 of the Requisitioning
Act to determine the compensation payable in respect of the property in
question for the said period. The learned Arbitrator by his award dated August
31, 1984 fixed the compensation payable for the property at Rs.21,000 per 760
month as against the claim of Rs.77,270 per month made by the appellants.
Aggrieved by the decision of the Arbitrator
the appellants filed an appeal before the High Court of Madras under section 11
of the Requisitioning Act. On an objection raised by the Registry of the High
Court regarding the amount of the court fee paid on the memorandum of appeal
the matter was placed before a Division Bench of the High Court of Madras for
its decision. After hearing the learned counsel for the appellants the High
Court following its earlier decision in Y. Venkanna Choudhary v. Government of
India, by Military Estates officer, Madras & Anr., AIR 1976 Madras 41 held
that the appellants were liable to pay court fee on the memorandum of appeal
under section 51 of the Act ad valorem on the amount of compensation which was
in dispute in the appeal. The appellants have filed this appeal by special
leave against the said order of the High Court.
Section 51 of the Act which arises for
consideration in this case reads thus:
"51. 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. " The corresponding provision in the Court Fees
Act, 1870 (Central Act VII of 1870) which was in force prior to the Act coming
into force in Tamil Nadu is section 8 of that Act. It reads thus:
"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." Two principal contentions are urged
by the appellants in support of this appeal. The first contention is that since
there is no transfer of title to the property which is requisitioned from its
owner to the Go 761 vernment, the said transaction is not an acquisition and
hence those provisions of the Requisitioning Act under which the property is
requisitioned do not constitute a law providing for acquisition of property. On
the above basis it is urged that section 51 of the Act would not be applicable
because it relates only to appeals filed against an order relating to
compensation under any Act for the time being in force for the acquisition of
land.
The expression 'acquisition' is not defined
in the Act.
We will have to ascertain from the scheme of
the Requisitioning Act whether an acquisition of property takes place when it
is requisitioned under the relevant provisions of the Requisitioning Act.
Sections 3 to 6 of the Requisitioning Act deal with the powers of the Government
in respect of requisitioning of property and section 7 of that Act confers
power on the Government to acquire a property which has been requisitioned.
Whenever a property is requisitioned by the competent authority it is entitled
to call upon the owner or any other person who may be in possession of the
property to surrender possession thereof to the Government. Section S of the
Requisitioning Act provides that all properties requisitioned under section 3
shall be used for such purposes as may be mentioned in the notice of
requisition. Such requisitioned property may be released from requisitioning
under section 6. The title to the property continues to rest with the owner,
the Government being entitled to only the possession of such property.
In the State of West Bengal v. Subodh Gopal
Bose and Ors., [1954] S.C.R. 587, Patanjali Sastri CJ., has explained the
meaning of the word 'acquisition' at page 610 thus:
"The word "acquisition" is not
a term of art, and it ordinarily means coming into possession of, obtaining,
gaining or getting as one's own. It is in this general sense that the word has
been used in articles 9, 11 and 19(1) (f) and not as implying any transfer or
vesting of title ........
................... To say that acquisition
implies the transfer and vesting of title in the Government is to overlook the
real nature of the power of the State as a sovereign acting through its
legislative and executive organs to appropriate the property of a subject
without his consent. When the State chooses to exercise such power, it creates
title in itself rather than acquire it from the owner the nature and extent of
the title thus created depending on the purpose and 762 duration of the use to
which the property appropriated is intended to be put as disclosed in the law
authorising its acquisition. No formula of vesting is necessary." In
Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd.
and Ors., [1954] S.C.R. 674 Mahajan, J. has observed at page 704 thus:
"In my judgment, the true concept of the
expression "acquisition" in our Constitution as well as in the
Government of India Act is the one enunciated by Rich J. and the majority of
the court in Dalziel's case. With great respect I am unable to accept the
narrow view that "acquisition" necessarily means acquisition of title
in whole or part of the property. It has been rightly said that a close and
literal construction of constitutional provisions made for the security of
person and property deprives them of half their efficacy and ends in a gradual
depreciation of the right as if the right consisted more in sound than in
substance. In other words, such provisions can not be construed merely by
taking a dictionary in hand. The word "acquisition" has quite a wide
concept meaning the procuring of property or the taking of it permanently or
temporarily. It does not necessarily imply the acquisition of legal title by
the State in the property taken possession of." In both the above
decisions the learned Judges drew support for their views from the decision of
the High Court of Australia in The Minister of State for the Army v.
Dalziel, 68 C.L.R. 261. In that case the High
Court of Australia had to consider the scope of the legislative power with
respect to acquisition of property conferred on the Commonwealth by section 51
(xxxi) of the Commonwealth of Australia Constitution Act of 1900 including the
power to take possession for indefinite period. In the said case the placitum
of the Australian Constitution which came up for consideration read like this:
"The Parliament shall, subject to this
Constitution, have power to make laws for the peace, order, and good government
of the Commonwealth with respect to-the acquisition of property on just terms
from any State or person for any purpose in respect of which the Parliament has
power to make law." Rich, J. who was one of the Judges constituting the
majority in that Bench observed.
763 "The language used is perfectly
general. It says the acquisition of property. It is not restricted to
acquisition by particular methods or of particular types of interests, or to
particular types of property. It extends to any acquisition of any interest in
any property .............. But there is nothing in the placitum to suggest
that the legislature was intended to be at liberty to free itself from the
restrictive provisions of the placitum by taking care to seize something short
of the whole bundle owned by the person whom it was expropriating
................................
.............. It would, in my opinion, be
wholly inconsistent with the language of the placitum to hold that, whilst
preventing the legislature from authorising the acquisition of citizen's full
title except upon just terms, it leaves it open to the legislature to seize
possession and enjoy the full fruits of possession, indefinitely, on any terms
it chooses, or upon no terms at all ...... I am not impressed by the argument
sought to be based upon the fact that in the expropriation legislation of fully
sovereign legislatures a distinction is sometimes drawn between the permanent
appropriation of property and the temporary assumption of the possession of
adjacent property for use whilst works are being erected on the property which
has been permanently appropriated. It was pointed out that in such legislation
the two types of appropriation are differently dealt with, and that different
language has been used to describe them by learned judges who have had occasion
to refer to them.
This is no doubt so. ......................
But, with all respect. I fail to see how the practice of such legislatures or
the language used by judges in referring to their legislation, throws any light
upon the construction or operation of placitum xxxi, occurring, as it does, in
a Constitution which confers powers which are both limited and conditional.
" The majority in that decision ultimately took the view that the taking
under regulation 54 of the National Security (General) Regulations by the
Commonwealth for an indefinite period of the exclusive possession of property
constituted an acquisition of property within the meaning of section 51(xxxi)
of the Australian Constitution.
"Possession in the Common Law". by
Pollock and Wright (1888) 764 says: 'So feeble and precarious was property
without possession or rather without possessory remedies, in the eyes of
medieval lawyers, that possession largely usurped not only the substance but
the name of the property ........
Possession confers more than personal right
to be protected against wrongdoers: it confers qualified right to possess, a
right in the nature of property which is valid against everyone who cannot show
a prior or better title............
......... Possession is a root of title.' Not
only is a right to possession a right of property, but where the object of
proprietary rights is a tangible thing, it is the most characteristic and
essential of those rights.
Possession, it is said, is nine points in
law. An owner without possession has only a mere shell while the person in
possession enjoys the property in many ways. In this situation, it is difficult
to say that there cannot be deprivation of property without deprivation of
title also.
Deprivation of possession for an indefinite
period is acquisition of property during that period though the title may continue
to rest with the owner. That is why the requisitioning law also had to satisfy
Article 19(1) (f) and Article 31 of the Constitution when they were in the
Constitution.
It is no doubt true that in India before the
Constitution there were two modes of depriving a person of immovable property
in exercise of the right of eminent domain of the State, namely, requisitioning
of property and acquisition of property and even after the Constitution came
into force the same pattern of laws is continued to be maintained but this
Court has treated both requisitioning of property and acquisition of property
as meaning the acquisition of property in the larger sense and there is no
reason to depart from the views expressed by the two Constitution Benches of
this Court referred to above. We do not, therefore, find any substance in the
argument that the requisitioning of property under the Requisitioning Act does
not amount to acquisition and the provisions contained in the said Act
providing for the requisitioning of property do not constitute a law relating
to acquisition of property referred to in section 51 of the Act. The first
contention, therefore, fails.
The second contention urged on behalf of the
appellants is that the award made by the Arbitrator under section 8 of the
Requisitioning Act not being an order as defined in the Code of Civil
Procedure, 1908 the appellants cannot be called upon to pay the court fee in
accordance with section 51 of the Act since section 51 of the Act refers to
court fee payable on a memorandum of appeal against an 'order'.
Elaborating the above contention the learned
counsel for the appe765 llants submitted that the expression 'order' in section
51 of the Act can only mean an order as defined in section 2(14) of the Code of
Civil Procedure in view of section 3(iv) of the Act which provides that
expressions used and not defined in the Act or in the Tamil Nadu General
Clauses Act, 1891 (Tamil Nadu Act I of 1891), but defined in the Code of Civil
Procedure, 1908 (Central Act V of 1908), shall have the meanings respectively
assigned to them in the said Code, and the expression 'order' is defined in
section 2(14) of the Code as the formal expression of any decision of a Civil
Court which is not a decree. It is argued that since the Arbitrator appointed
under section 8 of the Requisitioning Act is not a Civil Court, the award
passed by him cannot be termed as an 'order' bringing it within the mischief of
section 51 of the Act. Reliance is placed by the appellants in support of the
above contention on the decision of the High Court of Bombay in Hirji Virji
Jangbari v. Government of Bombay A.l.R. 1945 Bombay 348 which was a decision
rendered on the basis of section 8 of the Court Fees Act, 1870 which was in
force in Bombay at that time and which was more or less couched in the same
language as section 51 of the Act. We have already quoted above section 8 of
the Court Fees Act, 1870. The Act corresponding to the Requisitioning Act,
which was under consideration by the High Court of Bombay in that decision was
the Defence of India Act, 1939. In that case under rule 75A of the Defence of
India Rules, 1939 framed under the Defence of India Act, 1939 a plot of land
belonging to the claimant therein was acquired by the Government for and on
behalf of the Defence authorities and as no agreement could be arrived between
the claimant and the Government with regard to the amount of compensation
payable, the Government of Bombay appointed the Chief Judge of the Court of
Small Causes as an arbitrator under section 19(1) (b) of Defence of India Act,
1939 corresponding to section 8 of the Requisitioning Act, to determine the
amount of compensation payable to the claimant. The artibtrator fixed the
amount payable to him at Rs.45,855. The claimant being dissatisfied with that
amount filed an appeal in which he claimed a further sum of Rs.47,896/8 in
addition to the amount awarded to him by the arbitrator. The question that
arose in that case was whether the appellant was liable to pay court fee on the
memorandum of appeal ad valorem, as required by section 8 of the Court Fees
Act, 1870 or whether he was liable to pay a fixed fee under Schedule II Article
11 of the Court Fees Act, 1870.
The learned Judge who decided the said case
held that the order of the arbitrator in that case being not a decree nor an
order having the force of a decree and there being no provision in section 19
of the Defence of India Act and the Rules made thereunder by which the awards
made under that Act were deemed to be the 766 decrees, the award could not be
treated as an order within the meaning of section 8 of the Court Fees Act. The
learned Judge, therefore, came to the conclusion that a fixed court fee was
payable under the residuary Article 11 of Schedule II to the Court Fees Act, 1870.
It was brought to our notice that this decision had been followed in Crown v.
Chandrabhan Lal and Ors., A.I.R. 1957 Nagpur 8. We find that earlier to the
above decision a contrary view had been taken by the Calcutta High Court In re
Ananda Lal Chakrabutty & Ors., A.I.R. 1932 Calcutta 346. In that case
Rankin CJ. who decided it observed thus:
"Section 8, while not itself imposing
any fee upon any one, provides a rule for computation of the fee payable under
the Act in a certain class of cases. What it says is that, in the class of
cases, which it deals with, the amount of fee pay able under the Act on a
memorandum of appeal, it is to be computed according to the difference between
the two sums. Now, that section standing in the text of the Act proceeds clearly
upon the assumption that otherwise in the Act there is a charge which is an ad
valorem charge and is not a fixed charge;
.......... The provisions of s. 8, involving
as they do that fee in the class of cases dealt with is an ad valorem fee, are
themselves sufficient to exclude any question of Article 11 of Schedule II
being made applicable to such cases. It is not necessary to consider whether
the Tribunal's award, which is an order and not a decree, is an order having
the force of a decree.
Whatever the effect of that phrase may be,
section 8 shows one perfectly clear that an appeal regarding compensation in a
Land Acquisition case is not under Article 11 of Schedule II, because it is not
a fixed fee at all ...... ..." In Satya Charan Sur v. State of West
Bengal, A.I.R.
1959 Calcutta 609 the High Court of Calcutta
while following the decision in Ananda Lal Chakrabutty's case (supra) expressly
dissented from the view expressed in Hirji Virji Jangbari's case (supra), After
the Bombay Court Fees Act, 1959 came into force a similar question arose for
consideration in C.B.G. Trust v. Union of India, [1970] Bombay Law Reporter,
4()7, regarding the proper court fee payable on an appeal filed against an
award made under the Requisitioning Act. In the Bombay Court Fees Act, 1959
section 7(1) provided that the amount of fee payable 767 under that 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 should
be computed according to the difference between the amount awarded and the
amount claimed by the appellant. The language of that section was similar to
the language of section 51 of the Act and of section 8 of the Court Fees Act,
1870. A Division Bench of the High Court of Bombay, which heard the said case
held that the Court fee payable on the memorandum of appeal preferred against
award made under section 8 of the Requisitioning Act was as prescribed by
Article 3 of Schedule 1 read with section 7(1) of the Bombay Court Fees Act,
1959. They disapproved the decision of the Bombay High Court in Hirji Virji
Jangbari's case (supra) and followed the decision of the Calcutta High Court in
Ananda Lal Chakrabutty's case (supra). An identical question came before this
Court for consideration in Sahadu Gangaram Bhagade v. Spl. Deputy Collector,
Ahmedanagar & Anr., [1971] 1 S.C.R. 146. In that case this Court approved
the view expressed by the Calcutta High Court in Ananda Lal Chakrabutty's case
(supra) and in C. B. G. Trust case (supra) and held that the contention that
the award made by the Arbitrator had no effect and, therefore, it could not be
considered as an order, was not acceptable. The Court proceeded to hold that
though the award was not an order as defined in the Civil Procedure Code, 1908
having not been made by the Civil Court but since the expression 'order' had
not been defined in that Act, the award of the Arbitrator was undoubtedly a
formal expression of a E decision made by a competent authority which was
binding on the parties to the proceedings in which it was made. The learned
counsel for the appellants tried to distinguish this decision from the present
case on the ground that while the expression 'order' had not been defined in
the Bombay Court Fees Act, 1959 which arose for consideration in the said
decision, in the present case it had been defined as stated earlier by stating
in section 3(iv) of the Act that the expression used and not defined in the
Act, but defined in the Code of Civil Procedure should have the meaning
respectively assigned to them in the said Code, and in view of the above
distinction the decision in Sahadu Gangaram Bhagade's case (supra) would not
govern the present case. We do not find much substance in the above contention.
On carefully going through the decision of this Court in Sahadu Gangaram
Bhagade's case (supra) we find that the decision did not really turn upon the
presence or the absence of the definition of the word 'order' in the Bombay
Court Fees Act, 1959 although there is a reference to this aspect of the matter
in the course of the decision. The relevant 768 part of the decision in Sahadu
Gangaram Bhagade's case (supra) at page 150 reads like thus:
"Section 11 provides for an appeal to
the High Court against the award made by the arbitrator. In the Act there is no
provision similar to subsection (2) of s. 26 of the Land Acquisition Act, 1894
where under every award made by the Land Acquisition officer is to be deemed to
be a decree of court. Therefore, the question whether the award made under s. 8
of the Act is executable or not is a matter that requires further consideration.
For the present, we shall proceed on the basis that it, is not executable. But
section 9 of the Act requires the competent authority to pay the compensation
awarded to the person or persons entitled thereto. Therefore, we are unable to
accept the contention of the learned counsel for the appellant that the award
made by the arbitrator is something which has not effect and therefore it
cannot be considered as an order. It is true that it is not an 'order' as
defined in the Civil Procedure Code, the same having not been made by a civil
court. But the expression 'order' is not defined in the Act. The award of the
arbitrator is undoubtedly a formal expression of a decision made by a competent
authority. Further it is a decision binding on the parties to the proceedings
in which it is made. Therefore the question whether the order in question is
executable or not appears to us to be irrelevant for the purpose of determining
the point in issue.
" (emphasis added) The portion of the
judgment of this Court which has been under lined clearly brings out the effect
of an award.
This Court has held that the award of the
arbitrator is undoubtedly a formal expression of a decision made by a competent
authority. We are also of the view that much reliance cannot be placed on the
definition clause found in section 3(iv) of the Act since the definitions given
in that section have to be read subject to the context in which the expressions
defined therein appear in the Act. Section 3 of the Act states that in the Act
'unless the context otherwise requires' the words and expressions defined in
that section shall carry the meaning given to them in various clauses in that
section. It is relevant to note that in section 51 of the Act which arises for
consideration before us the word 'order' does not appear in isola769 tion. The
section states that the fee payable under the Act on a memorandum of appeal
against an order relating to compensation in 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
appellants. The 'order' referred to in section 51 of the Act need not therefore
be an 'order' of a civil court as defined in section 2(14) of the Code of Civil
Procedure but should be an 'order' relating to compensation under any Act for
the time being in force for the acquisition of property for public purposes.
There is no doubt that the award passed by the Arbitrator under the
Requisitioning Act is a formal expression of a decision made by a competent
authority which is binding on the parties and it relates to compensation
payable under an Act for the time being in force for the acquisition of
property for the public purposes. Hence we are of the view that even though the
expression 'order' simpliciter has to be understood in the sense in which that
expression is defined in section 2(14) of the Code of Civil Procedure, the wold
'order found in section 51 of the Act has to be read differently having regard
to the word which qualify that expression in that section, namely, relating to
compensation under any Act for the time being in force for the acquisition of
properties'.
The said order need not be an order of a
civil court only.
It can be of any statutory authority. But it
must determine compensation for a property acquired under a law of acquisition
of property for public purpose. The award made under section 8 of the
Requisitioning Act satisfies these tests. We do not, therefore, find any
substance in this contention too. Since according to us the appeal before the
High Court filed under section 11 of the Requisitioning Act falls squarely under
section 51 of the Act, court fee has to be paid on ad valorem basis as provided
in Article 1 of Schedule 1 to the Act. It follows that the residuary Article
i.e. Article 3(iii)(A)(1)(a) of Schedule 11 to the Act is not attracted. The
High Court was right in following its earlier decision in Y. Venkanna
Choudhary's case (supra) and directing the appellants to pay court fee an ad
valorem basis under section 5 1 of the Act.
We may add that the decision in Srunguri
Lakshmi Narayana Rao & Ors. v. Revenue Divisional officer, Kakinada &
Ors., A.I.R. 1968 Andhra Pradesh, 348 M. Ramachandran & Ors. v. State of
Madras represented by the Collector, Coimbatore, 87 Law Weekly Madras 791 Satya
Charan Sur's case (supra), Balakrishnan Nambiyar & Ors., v. Kanakathidathil
Madhavan & Ors., A.I.R. 1979 Kerala 40 and Ghouse Saheb v.
Sharifa Bi & Ors., A.I.R. 1977 Karnataka
181 have taken the came view as we have taken.
770 The decisions in Hirji Virji Jangbari's
case (supra), Kanwar Jagat Bahadur Singh v. The Punjab State, A.I.R. 1957
Punjab 32. Crown's case (supra) and Mangal Sen v. Union of India, A.I.R. 1970
Delhi 44 are not approved by us.
We, therefore, dismiss the appeal. There
shall, however, be no order as to costs.
The appellants are granted three months' time
to pay the deficit court fee on the memorandum of appeal.
M.L.A. Appeal dismissed.
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