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2002 DIGILAW 1074 (BOM)

State of Maharashtra v. Rama Maruti Javale

2002-10-16

D.G.KARNIK

body2002
JUDGMENT - KARNIK D.G., J.:---Heard Mr. K.K. Tated, learned Assistant Government Pleader for the appellant. 2. The appellant acquired land admeasuring 04 H 81 R out of Gat No. 748 of the respondent under the provisions of the Land Acquisition Act and compensation of Rs. 2228/- was awarded by the Land Acquisition Officer. 3. Unsatisfied with the amount of compensation the respondent applied under section 18 of the Land Acquisition Act for reference to the Court for enhancement of the compensation. Accordingly, the Collector made a reference and by the impugned judgment and order dated 24th August, 1994, passed in Land Reference No. 3751 of 1989, the learned Civil Judge, Senior Division, Pandharpur enhanced the compensation amount by Rs. 2632/- to Rs. 4860/-. The Court also awarded Rs. 789/- as solatium at the rate of Rs. 30% on the enhanced amount interest under section 28 and further awarded Rs. 10,011/- under sub-section (1-A) of 23 of the Land Acquisition Act. Being aggrieved, the State Government has filed this appeal under section 54 of the Land Acquisition Act to the Court. 4. The State has valued the appeal at Rs. 2832/- being the enhancement of the compensation awarded by the Court for the purposes of Court Fees and has accordingly paid the Court Fee Stamp thereon but, has not paid Court Fees on Rs. 789/- being the solatium not on Rs. 10,011/- being the amount awarded under sub-section (1-A) of section 23 of the Land Acquisition Act. The State has given table of valuation for the purposes of Court Fees and Jurisdiction in the table at page No. 5 annexed to the appeal memo. The appeal is valued at Rs. 2632/- for Court Fees (i.e. amount of enhanced compensation) and at Rs. 15,660/- for jurisdiction (i.e. aggregate of enhanced compensation, solatium thereon and compensation under section 23 (1-A) of the Land Acquisition Act, 1894.) The question that arises for my consideration is whether the valuation made for the purpose of Court Fees in this appeal is proper. 5. 2632/- for Court Fees (i.e. amount of enhanced compensation) and at Rs. 15,660/- for jurisdiction (i.e. aggregate of enhanced compensation, solatium thereon and compensation under section 23 (1-A) of the Land Acquisition Act, 1894.) The question that arises for my consideration is whether the valuation made for the purpose of Court Fees in this appeal is proper. 5. Relying on the judgment of the Division Bench of this Court in (Abdul Sultan Velji v. Collector of Ahmednagar)1, reported in A.I.R. 1968 Bombay 390, the learned Assistant Government Pleader contended that Court Fee is not required to be paid on the amount of solatium and further contended that though the Division Bench had no occasion to consider whether the Court Fee was payable on the amount awarded under sub-section (1-A) of section 23 of the Land Acquisition Act, no Court Fee would be payable on it also on the same principle on which the Court held that the Court Fee is not payable on the amount of solatium. 6. First let me test the contention of the learned Assistant Government Pleader on principle. The normal rule for computation of Court Fees is contained in Entry No. 1 of Schedule 1 to the Bombay Court Fee Act, 1959 and it provides that Court Fee on the plaint or the memorandum of appeal (not otherwise provided for in the Act) or for cross objections presented to any Civil or Revenue Court shall be in accordance with the subject-matter in dispute. Where, however, a separate provision is made in the Act itself, the Court Fee would be payable in accordance with the said provision and not on the basis of the subject-matter in dispute. Section 7 of the Bombay Court Fees Act on which reliance was placed by the learned Assistant Government Pleader reads as under :-- (7) Fee on Memorandum of Appeal against order or Award relating to compensation in certain cases." (1) 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. (2) ............ (Sub-section (2) not being relevant is not extracted.) 8. (2) ............ (Sub-section (2) not being relevant is not extracted.) 8. In respect of an appeal against an order relating to compensation made by the trial Court, the amount of Court Fee is payable on the difference between the amount awarded and the amount claimed by the appellants. A plain reading of sub-section (1) of section 7 makes it clear that it is applicable in respect of an appeal (filed by the appellant) for enhancement of compensation, because, Court Fee is computed on the" difference between the amount awarded and amount claimed by the appellant. In an appeal by the State, where it contends that the lower Court has awarded excessive compensation and it should be reduced. There is no way of calculating the "difference between the amount awarded and the amount claimed by the appellant. "In fact, in the appeal by the State, the appellant State does not claim any amount at all but it prays for setting aside of the amount awarded either wholly or atleast in part. Therefore, sub-section (1) of section 7 of the Bombay Court Fees Act is not applicable in respect of the appeal filed by the State challenging enhancement of the compensation. Sub-section (1) of section 7 which is in the nature of exception to Entry No. 1 of the Schedule No. 1 to the Bombay Court Fees Act would not be attracted in respect of an appeal by the State for setting aside the enhanced compensation under the Award of the Court and Court Fee would be payable on the basis of the subject-matter of the appeal. Sub-section (1) of section 7 would be applicable only in respect of an appeal or by the aggrieved person and who claims enhancement in the compensation, because only in that case the "difference between the amount awarded and the amount claimed" can be calculated. 9. Let me now examine the authorities relied upon by the learned Assistant Government Pleader. In Abdul Sultan Velji (referred to supra) the Division Bench of this Court held that the Court Fee is not payable on the amount of solatium and is payable only on the amount claimed by the appellant. Relying on sub-section (1) of section 7, of the Bombay Court Fees Act the Division Bench held that Court Fee is payable only on the amount claimed and not on the solatium. Relying on sub-section (1) of section 7, of the Bombay Court Fees Act the Division Bench held that Court Fee is payable only on the amount claimed and not on the solatium. This appeal was filed by the claimant for enhancement of compensation (and not by the State for annulment of the enhanced compensation) and hence the case was covered by sub-section (1) section 7 of the Bombay Court Fees Act. This case does not lay down that the Court Fee is not payable on the amount of quantified solatium even where sub-section (1) of section 7 of the Bombay Court Fees is not applicable as in the case of an appeal by the State. 10. Similarly the judgment of the Division Bench of the Gujarat High Court in (Anand H. Patel v. Additional Land Acquisition Officer, Ahmedabad)2, reported in 5 Gujarat Law Reporter 862, is also of no assistance to the appellant because, it was also a case of an appeal by a claimant claiming enhancement for the compensation and not an appeal by the State claiming annulment of the enhanced compensation. 11. The judgment of the Full Bench of the Andhra Pradesh High Court rendered in (Kalwani v. Land Acquisition Officer)3, reported in A.I.R. 1970 Andhra Pradesh 139 is also of no assistance for the same reason viz. that was also an appeal by the person claiming enhancement of compensation claimed by the appellants. Furthermore, in paragraph 9, P. Jaganmohan Reddy, the learned Chief Justice (as His Lordship then was) observed : "The reason for excluding solatium from the Award to be passed by the Court is perhaps due to the solicitude of the Legislature not to overburden the owner whose lands are acquired against his will with payment of Court-Fee thereon. This assumption of ours is fortified by the provisions of section 48 of the Court Fees Act itself, which require payment of Court Fee on the difference between the amount awarded and the amount claimed." (underlining supplied) The State, which is a beneficiary of a compulsory acquisition cannot claim the benefit of the solicitude of the Legislature in granting relief to the owner whose property was acquired against his will. 12. 12. In view of above discussion following position emerges : (i) An appeal by a person whose land is acquired claiming enhancement of the compensation, Court Fee is covered by sub-section (1) of section 7 and therefore, the Court Fee is payable only on the difference between the amount claimed in an appeal and the amount awarded by the trial Court and Court Fee is not payable on the amount of solatium; (ii) Sub-section (1) of section 7 of Bombay Court Fees Act is not applicable in respect of an appeal by the State challenging the enhancement of compensation; (iii) In case of an appeal by the State, Court Fee is payable under Entry 1 of Schedule 1 to the Bombay Court Fees Act on the subject-matter of appeal which includes the amount of solatium as well as the amount awarded under sub-section (1-A) of section 23 of the Land Acquisition Act. 13. There is yet other reason for my conclusion. Section 8 of the Suit Valuation Act, 1887 lays down that except in cases specified therein, valuation for the purposes of Court Fees and valuation for the purpose of jurisdiction shall be the same. The principle analogous to section 8 is applicable also to appeals, because, undoubtedly appeal is a continuation of a suit and calculations for Court Fees are made on similar basis for suits as well as appeals under Entry 1 of Schedule 1 of the Bombay Court Fees Act. The State itself has valued the appeal for the purposes of jurisdiction on the aggregate amount of enhanced compensation, solatium thereon and compensation under section 23(1-A) of the Land Acquisition Act. If so, it must also value the appeal for the purpose of Court Fees on identical amount. 14. The State Government is accordingly directed to correct the valuation made by it for the purpose of Court Fees and pay the deficit Court Fee stamp within a period of six weeks failing which the appeal memo shall stand rejected under Order 41, Rule (3) read with Order 7, Rule 11 of the Code of Civil Procedure. 15. The learned Assistant Government Pleader requested for stay of the operation of this order. Considering the small amount involved, the prayer is rejected. An authenticated copy of this order duly attested by the Court Sheristedar be supplied to the Assistant Government Pleader. Appeal rejected. -----