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2001 DIGILAW 533 (KER)

Kareem v. State of Kerala

2001-10-01

K.A.ABDUL GAFOOR, P.R.RAMAN

body2001
Judgment :- P.R. Raman, J. This Land Acquisition Appeal is filed against the judgment and decree dated 16.7.1996 in L.A.R. No. 363 of 1994 of the III Additional Sub Judge, Ernakulam. The appellant is the claimant in the Land Acquisition Reference case. An extent of 2.225 cents of land along with a 4 storied building standing thereon was acquired for the purpose of widening the National Highway 47. The relevant notification was published in the Gazette dated 18.10.1991. The Land Acquisition Officer awarded the land value at the rate of Rs. 26,895/- per cent that is to say Rs. 66,430/- per Are. The building was valued at Rs. 6,49,248/- as against the claim of Rs. 20 lakhs for both building and land together. Not satisfied with the amount awarded by the Land Acquisition Officer, the claimant sought for reference before the court below for enhancement of the compensation. 2. Before the reference court the claimant limited his claim at Rs. 1,00,000/- per, cent as regards the land value and Rs. 14,61,312/- towards the building. 3. The court below after considering the entire evidence in the matter awarded an amount of Rs. 40,000/-per cent towards land value. As a matter of fact, the land value was fixed by the court below relying on Ext. A2 as per which enhancement was given by the court below in a similar case. 4. Though the appellant contends that the land value fixed by the court below should be further enhanced, in the absence of any evidence to show that the land value fixed by the court below is too low or does not represent the market value, we are not satisfied with this contention. We find from the records and evidence in the case that the land value fixed by the court below is just and proper and represent the market value. Accordingly, we confirm the judgment and decree as regards the land value fixed in this case. 5. The next claim relates to the value of the building. The appellant relying on Ext. Al Commission report and Ext. A2 valuation report submitted by the Engineer, submits that the building should have been valued as fixed by the Commissioner, at Rs. 14,61,312/-. But the court below has not accepted .the Commissioner's report. 5. The next claim relates to the value of the building. The appellant relying on Ext. Al Commission report and Ext. A2 valuation report submitted by the Engineer, submits that the building should have been valued as fixed by the Commissioner, at Rs. 14,61,312/-. But the court below has not accepted .the Commissioner's report. According to the court below, the valuation by the Engineer without inspecting the municipal records to determine the age of the building and without deducting the relevant depreciation cannot be accepted as representing the correct market value. Hence, according to the court below, the valuation of AW.2 Engineer, which is Ext. A1(a) is not much dependable for awarding enhanced compensation for the structures. But however, since the awarding officer determined the compensation based on PWD rate and considering the fact that it is very .difficult to construct structures at PWD rates, 50% enhancement over the compensation awarded by the Land Acquisition Officer was given by the court below. In other words, the court below gave a further enhancement for Rs. 3,24,624/-over and above the value fixed by the awarding officer. 6. The valuation of the Engineer (AW.2) was rejected by the court below on the sole ground that he determined the age of the building without inspecting the municipal records and further that he did not deduct any depreciation for the building. Though the valuation by the Engineer need not be the sole basis that certainly is an item of evidence and the court below should have assessed the market value of the building with or without any modification of the value shown in the report of the Engineer rather than rejecting the report in toto. Even if the court below thought that any depreciation is to be allowed after determining the age of the building it was open to the court below to do so taking note of the valuation done by the Engineer as the basis if there was no other evidence available to assess the value of the building. Hence we are of the opinion that the rejection of the valuation of the building made by a qualified Engineer in toto may not be justifiable for the reasons stated by the Tribunal below. Hence we are of the opinion that the rejection of the valuation of the building made by a qualified Engineer in toto may not be justifiable for the reasons stated by the Tribunal below. The court below is free to take any independent evidence thereon to determine the age of the building and allow suitable depreciation for determining the correct market value of the building. We therefore set aside the judgment of the court below as regards the valuation of the building and remit the case for the purpose of assessing the market value of the structures afresh. Both the parties will have opportunity to adduce any additional evidence, if they so desire. 7. As we are remitting the case, partly allowing the appeal, so as to consider afresh the issue regarding the valuation of the building, while confirming the judgment of the court below as regards valuation of the land, the question arises as to whether the appellant is entitled to refund of the court-fee paid in the memorandum of appeal and if so, to what extent? Chapter 7 of the Court Fees Act deals with refund and remission and S.67 alone is relevant for our purpose. S.67 is extracted hereunder: "Refund in cases of remand - (1) Where a plaint or memorandum of appeal which has been rejected by the lower court is ordered to be received, or where a suit is remanded in appeal for a fresh decision by the lower court, the court making the order or remanding the appeal may direct the refund to the appellant of the full amount of the fee paid on the memorandum of appeal; and, if the remand is on Second Appeal, also on the memorandum of appeal in the first appellate court. (2) Where an appeal is remanded in Second Appeal for a fresh decision by the lower appellate court, the High Court remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of Second Appeal if the remand is in Second Appeal: Provided that, no refund shall be ordered if the remand was caused by the fault of the party who would otherwise be entitled to a refund: Provided further that, if the order of remand does not cover the whole of the subject-matter of the suit, the refund shall not extend to more than so much fee as would have been originally payable on that part of the subject-matter in respect whereof the suit has been remanded." 8. As per S.67, where the plaint or memorandum of appeal is rejected by the lower court is ordered to be received or a suit is remanded in appeal for a fresh decision by the lower court, the court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal; and, if the remand is on Second Appeal, also on the memorandum of appeal in the first appellate court. Here, the first part of the section may not be applicable as this is not a case where the plaint or memorandum of appeal is rejected by the lower court. But as per the second part of sub-s.(1) of S.67 where a suit is remanded in appeal for a fresh decision by the lower court, then also the appellant is entitled to refund of the full amount of court-fee. Though sub-s.(1) of S.67 also refers to a remand in the Second Appeal the remand in Second Appeal by the High Court is again separately dealt with under sub-s.(2) of S.67. As per S.67(2) of the Court Fees Act, where an appeal is remanded in Second Appeal for a fresh decision to a lower appellate court, the High Court remanding the appeal may direct the refund of the full amount paid as court-fee on the memorandum of Second Appeal if the appeal is remanded. 9. As per S.67(2) of the Court Fees Act, where an appeal is remanded in Second Appeal for a fresh decision to a lower appellate court, the High Court remanding the appeal may direct the refund of the full amount paid as court-fee on the memorandum of Second Appeal if the appeal is remanded. 9. Thus we find that both sub-s.(1)'and sub-s.(2) provides for payment of full amount of court fee paid on the appeal memorandum when the appellate court remits the matter for a fresh decision by the lower court. However, as per the first proviso to the section no refund shall be ordered if the remand was caused with the fault of the party who would otherwise be entitled to a refund. Thus, the first proviso carves out an exception to the general rule that the person otherwise entitled to refund by the main section is refrained from getting any refund if the remand itself was caused by the fault of that party at whose instance the appeal is allowed and remanded. As per the second proviso, if the order of remand does not cover the whole of the subject-matter of the suit, the refund shall not extent to more than so much fees as would have been originally payable on that part of the subject-matter in respect whereof the suit has been remanded. In other words, the second proviso forbids the refund not to exceed the court fee payable on the part of the subject-matter in respect of which the remission is made. In other words, in the case of a partial remand, when the remand is only in respect of a part of the subject-matter of the suit, only so much of the court fee payable thereon is refundable. 10. The general object of a proviso is to except something from the main clause or to qualify or restrain its generality and prevent mis-interpretation. The object of the proviso being to carve out from a main section a class or category to the main section which does not apply, though in exceptional cases, the proviso may be substantive provision itself. It is a fundamental rule of construction that a proper canon of construing a section, is to read the section and the proviso as a whole and give a meaning to the whole of the section along with the proviso which has comprehensive and logical meaning. It is a fundamental rule of construction that a proper canon of construing a section, is to read the section and the proviso as a whole and give a meaning to the whole of the section along with the proviso which has comprehensive and logical meaning. The principle is that while interpreting a statutory provision, the enacting clause, saving clause and proviso, taken and construed together is to prevail. Even though the provisos are added under sub-s.(2) of S.67, we do not see any logic in limiting the application of the proviso to sub-s.(2) alone. As a matter of fact, remand in the case of a second appeal is also dealt with under sub-s.(1) as well as under sub-s.(2). When the proviso is to carve out an exception to the general rule of the main section, in the absence of any indication to limit its application to sub-s.(2) alone, normally, the proviso governs the entire section. It is not necessary for the purpose of making a proviso applicable to the entire section to repeat it after each clause of that section. The proviso is really in the nature of an exception which takes a clause out of the operation of the main section. In Saradambal v. Seethalakshmi (AIR 1962 Mad. 108) the Madras High Court while interpreting S.69 of the Madras Court Fees and Suits Valuation Act, considering a similar question has held that the proviso to Sch. II Art.1 l(k) governs not only Cl. (2) but also Cl. (1) of that Article. It was held that in the absence of a special indication to show that the proviso to. a section is limited to one part of it normally, the proviso governs the entire section and further that it is not necessary for the purpose of making a proviso applicable to the entire section to repeat it under each sub-section. 11. Therefore, when refund is made as falling under sub-s.(1) or sub-s.(2) as the case may be by the appellate court, naturally, it has also to examine the question as to whether the remand is made at the instance of the parties who is at fault in which case no refund will be permissible and if it is only a partial remand only a proportionate court fee shall be allowed to be refunded. The Honourable Supreme Court in The Sales Tax Commissioner etc. etc. v. B.C. Fatal etc. etc. The Honourable Supreme Court in The Sales Tax Commissioner etc. etc. v. B.C. Fatal etc. etc. UT 1995 (6) SC 271) has held that: "It is settled law that the proviso of the main part of the Rule are to be harmoniously read to and interpreted to give effect to the object of the provision." 12. S.67 of the Court Fees Act provides for refund in the case of remand by an appellate court or by a second appellate court. If the remand is at the instance of a party who is at fault then he is not entitled to refund of the court-fee as per the first proviso. The second proviso allows only part of court-fee, when the remand does not cover the whole of the subject-matter, so that the refund shall not exceed to more than the court-fee payable on that part of the subject-matter. On a reading of the entire section and the proviso it can be seen that the proviso applies to the whole section. So understood we hold that the appellant is entitled to the refund of the court-fee proportionately. In other words, the court fee payable on the valuation relating to the building claimed by way of enhancement in this appeal - which part of the subject-matter is now remitted to the trial court, alone is refunded. We order accordingly. The appeal is disposed of as above. In the circumstances of the case, there will be no order as to costs.