SRIMANT PRANAY v. STATE OF MYSORE — 1971 DIGILAW 357 (KAR)

( 1 ) ON each of the memorandum of appeals under S. 54 of the Land acquisition Act, the appellant has paid court-fee of Rs. 10 only. The office of this Court has raised an objection that ad valorem court-fee is payable on the difference between the-amount of compensation claimed by" the appellant and the amount awarded by the Court below, in each of these appeals. As the learned Counsel for the appellant maintained that the Court-fee already paid, is sufficient, these appeals have been posted for orders on the question of court-fee payable in these appeals. MFA. 91, 131 and 132 of 1973. A notice under S. 19 of the Mysore Court Fees and Suits Valuation act, 1958 (hereinafter referred to as the Court Fees Act), was issued to the additional Government Advocate who appeared and supported the objection raised by the office. ( 2 ) MR. A. V. Albal, learned Counsel for the appellant, contended that art. 3 of Sch. II to the Court Fees Act, is applicable to appeals under S. 54 of the Land Acquisition Act and that the court-fee of Rs. 10 paid in each of these appeals, is in accordance with clause (iii) (1) (a) of that Article. On the other hand, the learned Additional Government Advocate contended that Art. 1 of Sch. I to the Court Fees Act, is applicable to such appeals, and that ad valorem court-fee is payable on the value of the subject matter in dispute computed in the manner provided by S. 48 of the court Fees Act. i. e. , on the difference between the amount of compensation awarded by the Court below and the amount of compensation claimed in the appeal. ( 3 ) IN order to appreciate these rival contentions, it is useful to set out the relevant provisions of the Court Fees Act. Sec. 29 of the Court Fees Act provides that court-fee payable under that Act shall be determined or computed in accordance with the provisions of the Chapters IV, VI and VIII and Schedules I and II. Sec. 48 of the Court Fees Act, as it stood before it was amended by the Mysore Court Fees and Suits Valuation (Amendment) Act, 1969. (hereinafter referred to as the Court Fees Amendment Act), read:" 48. Fee on memorandum of appeal aainst order relatina to compensation. Sec. 48 of the Court Fees Act, as it stood before it was amended by the Mysore Court Fees and Suits Valuation (Amendment) Act, 1969. (hereinafter referred to as the Court Fees Amendment Act), read:" 48. Fee on memorandum of appeal aainst order relatina to compensation. The fee pavahle under this Art on a memorandum of appeal aainst an order relating to compensation under anv Act for the time being in force for the acquisition of propertv for public purpose shall be computed on the difference between the amount awarded and the amount claimed by the applicant. " ( 4 ) THE title to Sch I to the Court Fees Act is ad valorem fees'. Art. 1 in Sch. T provides inter alia, that on a memorandum of appeal presented to anv Court Court-fee is payable at the rate of 75 paise for every Rs. 10 or part thereof, of the value of the subject matter in dispute. The relevant part of Art. 3 of Sch. II to the Court Fees Act, as it stood before it was amended by the Court Fees Amendment Act, read:" Art. 3. Memorandum of appeal from a decision or an award or order inclusive of an order determining any question under S. 47 or s. 144 of the CPC. , 1908, and not otherwise provided for when presented (i ). . . . . . . . . . . (ii ). . . . . . . . . . (iii) to the High Court (1) Where an order was passed by a subordinate Court or authority (a) if the matter relates to a suit or proceeding, the value of which exceeds Rs. 1000 Rs. 10. (b) in any other case Rs. 5. " ( 5 ) THE Court Fees Amendment Act substituted the words "decision, award or order" for the word order occurring both in S. 48 and in Art. 3 of schedule II to the Principal Act. In G. Sridhar Murthy v. Special Land Acquisition Officer, a Bench of this Court ruled that on a memorandum of appeal under S. 54 of the land Acquisition Act, court-fee is chargeable under Art. 1 of Sch. I to the court Fees Act and that the mode of determining the amount of court-fee is provided by S. 48 of the Court Fees Act. I to the court Fees Act and that the mode of determining the amount of court-fee is provided by S. 48 of the Court Fees Act. Their Lordships also observed that S. 48 or S. 49 of the Court Fees Act, is not the chargnig section and the charging provisions are S. 20 read with Schs. I and II to the Court fees Act. ( 6 ) HOWEVER, Mr. Albal argued that the above ruling of this Court, was prior to the amendment of S. 48 and Art. 3 of Sch. II of the Court Fees act by the Court Fees Amendment Act, and that that ruling is no longer applicable after such amendment of S. 48 and Art. 3 of the Sch. II. Mr. Albal added that the intention of the legislature in making such amendment is to relieve claimants from the burden of paying heavy court-fee while putting forth in their appeals their just claims for adequate compensation for acquisition of their property. ( 7 ) AS seen earlier, the only change brought about by the Court Fees amendment Act, in S. 48 and Art. 3 of Sch. II, is to substitute the words "decision, award or order" for the word 'order'. The above amendment appears to have been made in view of the observations of a Bench of this court in MFA. of Narasiappa that there was a lucuna in the Court Fees act which made no court-fee payable in respect of appeals like those under S. 11 of the Requisitioning and Acquisition of Immovable Property act, 1952, which appeals are not from orders of Civil Courts. The object of amending S. 48 of the Court Fees Act appears to be to remove the distinction between an award of compensation by an Arbitrator and an order of a Court awarding compensation, in regard to court- fee payable on memorandum of appeal from such award or order. ( 8 ) HOWEVER, Mr. Albal argued that the simultaneous amendment of S. 48 and Art. 3. Sch. ( 8 ) HOWEVER, Mr. Albal argued that the simultaneous amendment of S. 48 and Art. 3. Sch. II by substituting the words "decision, award or order" for the word 'order in both those provisions, is indicative that these two provisions are interlinked and deal with the same subject matter and that both of them should be held to be applicable to all appeals, relating to compensation for acquisition of properties for public purposes whether such appeals are under S. 54 of the Land Acquisition Act or under any other law relating to acquisition of property for a public purpose. ( 9 ) MERELY because the Court Fees Amendment Act has substituted the words "decision, award or order" for the word 'order' both in S. 48 and in art. 3 of Sch. II to the Principal Act. it does not follow that the ambit of s. . 48 and the ambit of Art. 3 of Sch. II, after such amendment, are the same or that both of them deal with the same subject matter. While the ambit of. S. 48 comprises of appeals from decisions, awards and orders relating to compensation for properties acquired for public purposes, the ambit of amended Art. 3 of Sch. II comprises of appeals presented to Courts from decisions, awards and orders of all kinds if such appeals are not otherwise provided for elsewhere in the Court Fees Act. If court-fee on any appeal from a decision, award or order relating to acquisition of property for a public purpose is provided for in any other provision of the court Fees Act, Art. 3 of Sch. II cannot apply to such appeal. ( 10 ) HOWEVER, Mr. Albal argued that after amendment of S. 48 and Art. 3 of Sch. II, an appeal from any decision, award or order relating to compensation for property acquired for a public purpose is governed by art. 3 of Sch. II and not Art. l of Sch. I. Merely because the words "decision, award or order" occur in Art. 3 of sch. II after amendment, it cannot be inferred that Art. l of Sch. I does not apply to an appeal to a Court from a decision, award or order and that every appeal from a decision, award or order is governed by Art. 3 of sch. II. On the other hand, the words, "not otherwise provided for" in art. II after amendment, it cannot be inferred that Art. l of Sch. I does not apply to an appeal to a Court from a decision, award or order and that every appeal from a decision, award or order is governed by Art. 3 of sch. II. On the other hand, the words, "not otherwise provided for" in art. 3 of Sch. II, show that the Article is applicable only when no other provision of this Act is applicable to such appeal. There is no reason why art. l of Sch. I cannot appply to an appeal to a Court from a decision, award or order relating to compensation for property acquired for a public purpose. When such appeal is governed by Art. 1 of Sch. I, obviously act 3 of Sch. II cannot apply to such appeal. ( 11 ) HOWEVER, Mr. Albal advanced another line of argument which runs thus: If a document falls under a general provision and also a special provision, the special provision alone shall be applicable. In cases of awards and decisions relating to compensation for properties acquired for public purpose, S. 48 read with Art 3 of Sch. II, as amended, are the special provisions since both these provisions specifically refer to "awards and decisions' ". Hence, payment of ad valorem court-fee cannot be demanded in appeals against such awards and decisions. Only a fixed court-fee of rs 10 or Rs. 5 (depending on whether the subject matter of an appeal exceeds or is below Rs. 1000) is payable. Art. 1 of Sch. I which is the general provision is rendered inapplicable to appeals from "awards and decisions" after the amendment of the Court Fees Act. Both in S. 48 and in Art. 3 of Sch. II decisions, awards and orders have been treated alike and they are put on the same footing; and those provisions do not make any distinction between awards and decisions on the one hand and orders on the other hand. Hence, it is illogical to demand ad valorem court-fee in an appeal under S. 54 of the Land Acquisition Act from an order of a court when only a fixed court-fee of Rs. 5 or Rs. 10 is now payable in appeals from decisions and awards relating to compensation for acquisition of properties for public purposes. So runs the arguments of Mr. Albal. 5 or Rs. 10 is now payable in appeals from decisions and awards relating to compensation for acquisition of properties for public purposes. So runs the arguments of Mr. Albal. ( 12 ) THE above line of argument proceeds on the basis that for an appeal from a decision or award of compensation for property acquired for a public purpose, a fixed court-fee is payable under Art. 3 of Sch. II to the court Fees Act. But that very basis does not appear to be sound in view of the decision of the Supreme Court in S. G. Bhagade v. Special Deputy collector, Ahmednagar, AIR. 1971 SC 1887. There, the question that arose was whether on a memorandum of cross-objections filed in an appeal under S. 11 of the requisitioning and Acquisition Act, 1952, from an award of an Arbitrator under S. 8 of that Act, ad valorem court-fee is payable under Art. 3 of sch I to the Bombay Court Fees Act, 1959, or only, a fixed court fee is payable under Art. 13 of Sch. II to that Act. S. 7 (l) of the Bombay Court fees Act is practically identical with S. 48 of the Mysore Court Fees Act, as it stood before it was amended. After referring to S. 7 (l) of the Bombay court Fees Act, this is what Hegde, J. , who spoke for the Court, said at page 1890:" This provision is similar to S. 8 of the Court Fees Act, 1870. It clearly applies to' an appeal filed under S. 11 of the Act (Requisitioning and Acquisition Act, 1952 ). It is true that the provision is not a charging section. It only provides for the computation of the court fee payable. But that provision makes it clear that it relates to the computation of a court-fee payable on ad valorem basis. It can have no connection with any article providing for the payment of fixed court-fee. Therefore the computation provided under that provision can only be of a court-fee payable under one or the other articles in schedule I. " ( 13 ) IN view of the above decision, it is clear that in an appeal under S. 11 of the Requisitioning and Acquisition Act, as well as in an appeal under s. 54 of the Land Acquisition Act, ad valorem court-fee is payable under the Mysore Court Fees Act also. ( 14 ) HOWEVER, Mr. Albal contended that the above pronouncement of the supreme Court while construing the provisions of the Bombay Court Fees act, has no application to cases arising under the Mysore Court Fees Act, as the relevant provisions of the two Acts are not in pan materia. Mr. Albal pointed out that the title of Sch. II to the Bombay Court Fees Act, reads as "fixed Court Fees", while Sch. II to the Mysore Court Fees Act has no title. Mr. Albal pointed out another distinction between the articles in Sch. II to each of those Acts. While in each of the articles of Schedule ii to the Bombay Court Fees Act, a uniform court-fee is specified irrespective of the value of the subject matter, in some of the articles of sch. II to the Mysore Court Fees Act, two different amounts of fixed court-fee are specified depending upon whether the value of the subject matter in dispute, is above or below a particular amount. ( 15 ) THESE differences between the provisions of Schedule II of each of these Court Fees Acts, are, in our opinion too insubstantial and do not render the decision of the Supreme Court in S. G. Bhagade v. Special deputy Collector, inapplicable for ascertaining the court-fee payable under the Mysore Court Fees Act in appeals from decisions, awards and orders relating to compensation for properties acquired for public purposes. ( 16 ) THUS, we reject the contention of Mr. Albal that on a memorandum of appeal under S. 54 of the Land Acquisition Act, a fixed court-fee is payable under Art. 3 of Sch. II to the Court Fees Act, as amended. We hold that ad valorem court-fee is payable on these memoranda of appeals. In each of these appeals, the appellant is granted two months' time to pay the deficient court-fee. --- *** --- .