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Madhya Pradesh High Court · body

2005 DIGILAW 686 (MP)

Dr. Hajarilal Agrawal v. State of Madhya Pradesh

2005-07-06

ARUN MISHRA, SHANTANU KEMKAR

body2005
Judgment ( 1. ) THIS appeal valued at Rs. 1,95,72,450/-, has been preferred as M. A. No. 215/2005 under Section 54 of the Land Acquisition Act against an award passed by First Additional District Judge, Katni in Land Acquisition Case No. 66/2000, 68/2000 and 18/2001 on 6-10-2004. The Court fee which has been paid is Rs. 15/- payable on miscellaneous appeal. An application has been filed under Section 149 of CPC in which prayer has been made that appellant may be allowed to make payment of Court fee at the time of final decision of the appeal on compensation which may be determined. Another application has been filed to convert the miscellaneous appeal into first appeal. ( 2. ) AD valorem Court fee is required to be paid on the valuation made in the appeal, of which enhancement has been prayed for in the appeal. ( 3. ) SHRI S. K. Dwivedi, learned Counsel appearing for the appellant has submitted that appellant may be allowed to make the payment of Court fee at the time of final decision of the appeal on compensation, which may be determined and miscellaneous appeal be allowed to be converted into first appeal. He has placed reliance on a decision of this Court in Bhag Singh and Ors. v. Union Territory of Chandigarh through the Land Acquisition Collector, Chandigarh 1985 MPLJ 523. ( 4. ) SHRI Samdarshi Tiwari, learned Dy. Govt. Advocate has submitted that first appeal lies not miscellaneous appeal. A Full Bench of this Court in State of Madhya Pradesh v. Seth Gowardhandas Maheshwari 1993 MPLJ 536 , has opined that an award of the Civil Court made in land acquisition cases is a decree within the meaning of Section 2 (2) of the Civil Procedure Code and in case of an appeal under Section 54 of the Land Acquisition Act from such award, Article I-A of Schedule 1 of the Court Fees Act is attracted and ad valorem Court fee is leviable on the memorandum of appeal. He has placed reliance on a decision of the Apex Court in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and Anr. , AIR1971 SC 1887 , (1971 ) 73 BOMLR903 , (1970 )1 SCC685 , [1971 ]1 SCR146 and also decision of Full Bench of this Court in Union of India v. Smt. Kanti Sharma and Ors. He has placed reliance on a decision of the Apex Court in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and Anr. , AIR1971 SC 1887 , (1971 ) 73 BOMLR903 , (1970 )1 SCC685 , [1971 ]1 SCR146 and also decision of Full Bench of this Court in Union of India v. Smt. Kanti Sharma and Ors. 1998 (2) MPLJ 658 , in which it was opined by this Court that Court fee in an appeal under Section 11, Requisitioning and Acquisition of Immovable Property Act is payable ad valorem under Section 8 of the Court Fees Act. ( 5. ) IT is not in dispute at Bar and rightly that ad valorem Court fee is payable in an appeal filed under Section 54 of Land Acquisition Act in view of the Full Bench decisions of this Court in State of Madhya Pradesh v. Seth Gowardhandas Maheshwari and Union of India v. Smt. Kanti Sharma and Ors. (supra ). The Court fee is payable on valuation mentioned in appeal which is under question. In case enhancement is prayed, Court fees is payable ad valorem on amount sought to be enhanced. In case award is challenged as excessive it is payable on amount which is under question. ( 6. ) THE main question for consideration is whether the appellant can be allowed to make payment of the Court fee at the time of final decision of the appeal. Reliance has been placed by Shri S. K. Dwivedi, learned Counsel appearing for the appellant on a decision of Apex Court in Bhag Singh and Ors. v. Union Territory of Chandigarh through the Land Acquisition Collector, Chandigarh (supra ). The facts of the said case are totally different. There was refusal to extend the time for making payment of Court fees on the claim made for enhancing compensation. Extension of time for payment of Court fees was objected by the State. The extension of time for payment of Court fees was refused. It was held by the Apex Court that to deny this benefit to the appellants would tantamount to permitting the State Government to acquire the land of the appellants on payment of less than the true market value. The extension of time for payment of Court fees was refused. It was held by the Apex Court that to deny this benefit to the appellants would tantamount to permitting the State Government to acquire the land of the appellants on payment of less than the true market value. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. The Apex Court held: 3. We are of the view that when the learned Single Judge and the Division Bench took the view that the claimants whose land was acquired by the State of Punjab under the notifications issued under Sections 4 and 6 of the Act, were entitled to the enhanced compensation and the case of the appellants stood on the same footing, the appellants should have been given an opportunity of paying up the deficit Court fee so that, like other claimants, they could also get enhanced compensation at the same rate as the others. The learned Single Judge and the Division Bench should not have, in our opinion, adopted a technical approach and denied the benefit of enhanced compensation to the appellants merely because they had not initially paid the proper amount of Court fee. It must be remembered that this was not a dispute between two private citizens where it would be quite just and legitimate to confine the claimant to the claim made by him and not to award him any higher amount than that claimed though even in such a case there may be situations where an amount higher than that claimed can be awarded to the claimant as for instance where an amount is claimed as due at the foot of an account. Here was a claim made by the appellants against the State Government for compensation for acquisition of their land and under the law, the State was bound to pay to the appellants compensation on the basis of the market value of the land acquired and if according to the judgments of the learned Single Judge and the Division Bench, the market value of the land acquired was higher than that awarded by the Land Acquisition Collector or the Additional District Judge, there is no reason why the appellants should have been denied the benefit of payment of the market value so determined. To deny this benefit to the appellants would tantamount to permitting the State Government to acquire the land of the appellants on payment of less than the true market value. There may be cases where, as for instance, under agrarian reform legislation, the holder of land may, legitimately, as a matter as social justice, with a view to eliminating concentration of land in the hands of a few and bringing about its equitable distribution, be deprived of land which is not being personally cultivated by him or which is in excess of the ceiling area with payment of little compensation or no compensation at all, but where land is acquired under the Land Acquisition Act, 1894, it would not be fair and just to deprive the holder of his land without payment of the true market value when the law, in so many terms, declares that he shall be paid such market value. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. We are, therefore, of the view that, in the present case, the Division Bench as well as the learned Single Judge should have allowed the appellants to pay up the deficit Court fee and awarded to them compensation at the higher rate or rates determined by them. We are, therefore, of the view that, in the present case, the Division Bench as well as the learned Single Judge should have allowed the appellants to pay up the deficit Court fee and awarded to them compensation at the higher rate or rates determined by them. The decision of Apex Court in Bhag Singh v. U. T. of Chandigarh (supra), has totally different field to operate for extension of time to make payment of Court fee not for postponing the payment of Court fees on the amount of compensation which may be determined by Court. Court fees is payable on valuation of appeal. The amount for which adjudication is sought not on determined, on the initial stage where Court-fee is required to be paid. We have accepted the prayer of appellants Counsel to give time to make payment of Court fee, which learned Counsel has stated that shall be paid within the lime fixed by this Court. The decision of Bhag Singh v. U. T. of Chandigarh (supra), cannot be read to lay down that payment of Court Ice has to be deferred till compensation is actually determined by the Court al the lime of final decision of the appeal. ( 7. ) A Full Bench of this Court in State of Madhya Pradesh v. Seth Gowardhandas Maheshwari (supra), has laid down that ad valorem Court fee is payable on memo of appeal and also on cross-objection. The Full Bench has held: 17. The question of valuation of appeal against an award in land acquisition cases and payment of Court fees on memorandum of appeal against such award is further fortified by the provision of Section 8 of the Court Fees Act. Section 8 of the Court Fees Act reads as under: ( 8. ) FEES 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. 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. A perusal of Section 8 of the Court Fees Act quoted above would reveal that it is not in itself a charging section as it does not by itself impose any Court fees but it does provide a salutary rule for computation of the fee payable under the Court Fees Act in a certain class of cases with which it deals. It clearly lays down the rule that the amount of fee payable 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 two sums, that is, the difference between the amount awarded and the amount claimed by the appellant in appeal. In case of claim of difference between the amount awarded and the amount claimed by the appellant, the amount is calculable and determinable accurately and, therefore, it can also not be said that the valuation of appeal is incapable of calculation. The words and language "of Section 8 of the Court Fees Act are very comprehensive and wide enough to cover memorandum of appeals against all orders relating to compensation under any Act for time being in force for acquisition of land for public purposes. In the matter of appeal relating to award of compensation under the Land Acquisition Act by parties claiming compensation money, Section 8 of the Court Fees Act, being a special provision, overrides the general provisions with regard to computation of fee. In the present case before us, the respondent claims a definite sum as compensation and, therefore, the amount of fee payable on the cross-objection has to be computed on the amount so claimed as the difference between the amount awarded and the amount claimed in cross-objection is fully determined and that being so, ad valorem Court fee under Article 1-A of Schedule 1, has to be paid on the memorandum of appeal. 8. 8. Similar is the view taken by another Full Bench in Union of India v. Smt. Kanti Sharma and Ors. (supra), in which decision of Apex Court in Sahadu Gangaram v. Special Deputy Collector, Ahmednagar and Anr. (supra), has been relied on. It was laid down that Court fee is payable on memorandum of appeal and cross-objection filed in appeal Ad valorem Court fee is prescribed by Article 3 of Schedule I not fixed Court fee, thus we find that prayer made by the appellants Counsel to make the payment of Court fee at the time of final decision of this appeal, cannot be allowed. Prayer is rejected. Appellant is given 8 weeks time from today to make payment of requisite ad valorem Court fee. In case Court fee is paid regular first appeal be registered as this Misc. Appeal is not maintainable. Prayer for conversion is allowed subject to payment of Court-fee. This Misc. Appeal is disposed of.