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Madhya Pradesh High Court · body

2010 DIGILAW 319 (MP)

Harivansh v. Parsuram

2010-03-17

SANJAY YADAV

body2010
JUDGMENT : 1.A. No. 1 2265/2009 in an application whereby the appellant counters theobjection raised by the office for affixation of ad valorem Court Tees on the memorandum of appeal preferred under Section 20 of the CoalHearing Areas (Acquisition and Development) Act, 1957, whereon fixed Court feesunder Article 11 of Schedule 2 of the Court Fees Act, 1876 has been affixed. 2.Fact giving rise to appeal briefly are that, the appellant instituted a claimunder Sections 14 and 17 of the Act of 1957 before the Tribunal constitutedunder sub-section (14) for payment of compensation and its interest on accountof acquisition of land bearing Khasra No. 100,admeasuring one acre situated at Village Madori , Tehsil Singrauli , District Sidhi being acquired for the purpose of excavation of coal.The Tribunal vide award dated 28-4-2001 and for the reasons assigned therein dismissed the claim petition. 3.It is this award which is being put to challenge in this appeal undersub-section (1) of Section 20 of the Act of 1957, by affixing the fixed Courtfees. The office has, however, raised an objection that the ad valorem Court fees is payable. To resolve the controversyand since the matter pertains to revenue of the State, learned Advocate Generalwas noticed, who is being represented by learned Govt. Advocate. 4.It is the contention of the appellant herein that, the award passed by theTribunal constituted under Section 14 (3) of the Act of 1957 does not have thetrappings of the decree as is defined under Section 2 (2), Code of CivilProcedure and nor the same is appeal able as a decree under Section 20 ( 1 ) of the Act of 1957. Drawing inference from the judgmentof the Supreme Court in Diwan Brothers Vs. CentralBank of India, AIR 1976 SC 1503 , and a Full Bench judgment of this Court in Shantilal Vs. Drawing inference from the judgmentof the Supreme Court in Diwan Brothers Vs. CentralBank of India, AIR 1976 SC 1503 , and a Full Bench judgment of this Court in Shantilal Vs. Town Improvement Trust, 1977 MPLJ 690, and adistinction with the provisions contained under the Land Acquisition Act, 1894; whereunder , Section 54 clearly stipulates that"subject to the provisions of the Code of Civil Procedure, 1908 (5 of1908), applicable to appeals from original decrees, and notwithstandinganything to the contrary in any enactment for the time being in force, anappeal shall only be in any proceedings under this Act to the High Court fromthe award, or from any part of the award, of the Court and from any decree ofthe High Court passed on such appeal as aforesaid an appeal shall lie to theSupreme Court subject to the provisions contained in Section 110 of the Code ofCivil Procedure, 1908, and in Order XLIV thereof ";it is urged by the learned Counsel for the appellant that fixed Court fees ispayable and not the ad valorem Court fees on amemorandum of appeal under Section 20 (1) of the Act of 1957. Thequestion is whether an award rendered under Section 14 (5) of the Act of 1957by the Tribunal could have the trapping of a decree. 5.To appreciate the same relevant provisions of the Court Fees Act, 1870 and Actof 1957 can be taken note of. Section8 of Court Fees Act stipulates : - "8.Fee on memorandum of appeal against order relating to compensation .- The amount of fee payable under this Act on a memorandumof appeal against an order relating to compensation under any Act for the timebeing in force for the acquisition of land for public purposes, shall becomputed according to the difference between the amount awarded and the amountclaimed by the appellant." Article 11 in Schedule 2, Court Fees Actprovides for:- Number 11.Memorandum of appeal when the appeal is not from a decree or an order havingthe force of a decree ( a ) When presented to the High Court. (b)When presented to the Civil Court other than the High Court. Properfee Sevenrupees and fifty paise Three rupees. In Diwan Bros, (supra), it was observed by TheirLordships:- "9. It was submitted by learned Counsel for the appellantsthat the Court Fees Act and the Code of Civil Procedure being statutescomplementary to each other should be read as one harmonious whole. (b)When presented to the Civil Court other than the High Court. Properfee Sevenrupees and fifty paise Three rupees. In Diwan Bros, (supra), it was observed by TheirLordships:- "9. It was submitted by learned Counsel for the appellantsthat the Court Fees Act and the Code of Civil Procedure being statutescomplementary to each other should be read as one harmonious whole. We thinkthat the contention is well founded and must prevail. The term"decree" as used in the Court Fees Act is a term of art and it mustbe deemed to have been used in the same sense as understood by the Code ofCivil Procedure. It may be pertinent to note here that neither the Court FeesAct nor the Displaced Persons (Debts Adjustment) Act has defined the term"decree". Nevertheless as far back as 1859 by ActNo. VIII of 1859 passed by the Governor-General in Council the conceptof a decree was clearly indicated, although no definition of a decree was givenin that Act. By Sections 183 to 190 the manner in which the judgments were tobe given and the decrees were to be prepared as also the contents of the samewere clearly mentioned. Section 189 which expressly dealt with decrees ran thus : - "Thedecree shall bear date the day on which the judgment was passed. It shallcontain the number of the suit, the names and descriptions of the parties, andparticulars of the claim, as stated in the Register of the suit, and shallspecify clearly the relief granted or other determination of the suit. It shallalso state the amount of costs incurred in the suit and by what parties and inwhat proportions they are to be paid, and shall be signed by the Judge, andsealed with the seal of the Court." Thuswhen the Court Fees Act was passed in the year 1870 and used the term"decree" it must be intended to have used the word "decree"so as to bear the same connotation as the word "decree" as explainedin Section 189 of Act VIII of 1859. In the Code of Civil Procedure Act, XIV of1882 "decree" appears to have been defined for the first time and thedefinition may be extracted as follows:- "'decree' means the formal expression of an adjudication upon any right claimed,or defence set up in a Civil Court when suchadjudication so far as regards the Court expressing it, decides the suit, orappeal. In the Code of Civil Procedure Act, XIV of1882 "decree" appears to have been defined for the first time and thedefinition may be extracted as follows:- "'decree' means the formal expression of an adjudication upon any right claimed,or defence set up in a Civil Court when suchadjudication so far as regards the Court expressing it, decides the suit, orappeal. An order rejecting a plaint, or directing accounts to be taken, ordetermining any question mentioned or referred to in Section 244, but notspecified in Section 588, is within this definition : an order specified in Section 588 is not within this definition." TheCode of Civil Procedure of 1908 also gave a full and complete definition of"decree" in Section 2 (2) which runs thus : -" 'decree' means the formal expression of an adjudication which, so far asregards the Court expressing it, conclusively determines the rights of theparties with regard to all or any of the matters in controversy in the suit andmay be either preliminary or final. It shall be deemed to include the rejectionof a plaint and the determination of any question within Section 47 or Section144, but shall not include- (a)Any adjudication from which an appeal lies as an appeal from an order; or (b)Any order of dismissal for default." 10.It would be seen that an order rejecting a plaint was clearly mentioned asfalling under the term "decree". In view of this clear definition ofthe order rejecting a plaint, it became necessary to make a correspondingchange in Schedule II Art. 11 of the Court Fees Act and by Act V of 1908, thewords "from an order rejecting a plaint or" used in Schedule II Art.11 before 1908 were expressly omitted for the simple reason that an orderrejecting a plaint having been incorporated in the definition of a"decree" it was not necessary to retain it in the Court Fees Act.This is the most important intrinsic evidence to show that the Legislature inenacting the Court Fees Act used the term "decree" in the same senseas it was used in Section 2 (2) of the Code of Civil Procedure, 1908 or in theCode obtaining before that day. This also shows that the Court Fees Act and theCode of Civil Procedure are more or less complementary to each other. Thismatter was the subject-matter of a decision of this Court in Mannan Lal Vs . Mst . This also shows that the Court Fees Act and theCode of Civil Procedure are more or less complementary to each other. Thismatter was the subject-matter of a decision of this Court in Mannan Lal Vs . Mst . Chhotaka Bibi , (1970) 1 SCC 769 = AIR 1971 SC 1374 , where this Courtobserved as follows:- ''Inour view in considering the question as to the maintainability of an appealwhen the Court-fee paid was insufficient to start with but the deficiency ismade good later on, the provisions of the Court Fees Act and the Code of CivilProcedure have to be read together to form a harmonious whole and no effortshould be made to give precedence to provisions in one over those of the otherunless the express words of a statute clearly override those of the other.Apart from the decisions bearing on the point, there can in our opinion, be nodoubt that Section 4 of the Court Fees Act is not the last word on the subjectand the Court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be doneby reading Section 149 as a proviso to Section 4 of the Court Fees Act byallowing the deficiency to be made good within a period of time fixed byit." 17.Thus, on a consideration of the authorities mentioned above the propositionsmay be summarised as follows : - Firstly,that under the definition of a "decree" contained in Section 2 (2) ofthe Code of Civil Procedure, 1908 three essential conditions are necessary,- ( i ) that the adjudication must begiven in a suit; (ii) that the suit must start with a plaint and culminate adecree; and (iii) that the adjudication must be formal and final and mustbe given by a Civil or Revenue Court . Inthe proceedings under the Act we have already pointed out that as theLegislature has created a Special Tribunal to inquire into the claims ofdisplaced debtors or creditors, the Tribunal cannot be called a Court in anysense of the term because the Legislature has made a clear distinction betweena Tribunal and a Court. Secondly, as the proceeding before the Tribunal startswith an application and not with a plaint the other important ingredient of a decreeis wholly wanting. Secondly, as the proceeding before the Tribunal startswith an application and not with a plaint the other important ingredient of a decreeis wholly wanting. Thirdly, the Legislature has itself made a clear-cutdistinction between a suit and a proceeding and has described the claim beforethe Tribunal as a proceeding rather than as a suit. In these circumstances,therefore, none of the requirements of a decree are to be found in the decisiongiven by the Tribunal even though the Legislature may have described thedecision as a decree. A mere description of the decision of the Tribunal as adecree does not make it a decree within the meaning of the Court Fees Act. Theterm "decree" appears to have been used by the Legislature to conveya sense of finality regarding the decision of the Tribunal more particularlysince the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a"decree"." The Full Bench of this Court in Shantilal (supra), in context of the provisions contained in the M.P. Improvement TrustAct, 1960 was pleased to observe:- "4.Section 72 of the M.P. Improvement Trust Act, 1960, provides for compensation.Section 73 provides for the Constitution of" a Tribunal to assess thecompensation. Section 78, sub-section (1) confers powers on the Tribunal asregards the procedure. Sub-section (2) attaches finality to the decision givenby the Tribunal and sub-section (3) of Section 78 reads thus:- "Section 78. (3) Every decision of the Tribunal andevery order made by the Tribunal for the payment of money shall be enforced bya Competent Civil Court within the local limits of whose jurisdiction it was made as if it were adecree of that Court". Sections 147,148 and 149 of the said Act are as under : - "Section 147. Appeal from the decision of the Tribunal .- Any person aggrieved by the decision of the Tribunal may- (a) where the value of the claim of such person before theTribunal exceeds Rs . 50 appeal to the High Courtwithin 90 days from the date of decision; (b)in any other case appeal to the Court of the District Judge having jurisdictionover the Trust Area, within 60 days from the date of such decision." Section 148. Procedure in such appeal.- The provisions ofthe Code of Civil Procedure, 1908 (5 of 1908), with respect to appeals fromoriginal decrees shall, so far as may be, apply to appeals under thisAct." "Section 149. Procedure in such appeal.- The provisions ofthe Code of Civil Procedure, 1908 (5 of 1908), with respect to appeals fromoriginal decrees shall, so far as may be, apply to appeals under thisAct." "Section 149. Execution of order of High Court .- Every order passed by the Court of the District Judge orthe High Court on appeal under this Act shall be enforced, on application, by a Competent Civil Court within the local limits of whose jurisdiction the award or order appealedagainst was made, as if it were a decree of that Court." 6.In view of this decision of the Supreme Court, nothing remains to be decided bythis Court as regards the applicability of Article 11 in 2nd Schedule of theCourt Fees Act. Following the Supreme Court decision we hold that on appealunder Section 147 of the M.P. Town Improvement Trust Act from a decision givenunder Section 78 of the said Act, ad valorem Courtfees on the difference between the amount claimed and the amount awarded is notrequired to be paid, the Court fees payable on such appeal will be underArticle 11 in Schedule 2 of the Court Fees Act." 6.The Coal Bearing Areas (Acquisition and Development) Act, 1957 is an Act toestablish in the economic interest of India greater public control over thecoal mining industry and its development by providing for the acquisition bythe State of unworked land containing or likely tocontain coal deposits or of rights in or over such land, for the extinguishmentor modification of such rights accruing by virtue of any agreement, lease, licence or otherwise, and for matters connected therewith. 7.Sections 13 and 14 of the Act of 1957 specify the principles on which and themanner in which compensation is determined. Section14 stipulates: 14.Method of determining compensation.- (1)Where the amount of any compensation payable under this Act can be fixed byagreement, it shall be paid in accordance with such agreement. (2)Where no such agreement can be reached, the Central Government shall constitutea Tribunal consisting of a person who is or has been or is qualified to be aJudge of a High Court for the purpose of determining the amount. (3)The Central Government may in any particular case nominate a person havingexpert knowledge in mining to assist the Tribunal, and where such nomination ismade, the person or persons interested may also nominate any other person forthe same purpose. (3)The Central Government may in any particular case nominate a person havingexpert knowledge in mining to assist the Tribunal, and where such nomination ismade, the person or persons interested may also nominate any other person forthe same purpose. (4)At the commencement of the proceedings before the Tribunal the CentralGovernment and the person interested shall state what in their respectiveopinions is a fair amount of compensation . (5)The Tribunal shall, after hearing the dispute, make an award determining theamount of compensation which appears to it to be just, and specify the personor persons to whom the compensation shall be paid; and in making the award theTribunal shall have regard to the circumstances of each case and to theforegoing provisions of this Act with respect to the manner in which the amountof compensation shall be determined in so far as the said provisions or any ofthem may be applicable. (6)Where there is a dispute as to the person or persons entitled to compensationand the Tribunal finds that more persons than one are entitled to compensation,it shall apportion the amount thereof among such persons and in such manner asit thinks fit. (7)Nothing in the Arbitration Act, 1940, shall apply to any proceedings under thissection. (8)The Tribunal, in the proceedings before it, shall have all the powers which aCivil Court has while trying a suit under the Code of Civil Procedure, 1908, inrespect of the following matters, namely :- (1) summoning and enforcing the attendance of any personand examining him on oath; (ii) requiring the discovery and production of anydocument; (iii) reception of evidence on affidavits; (iv) requisitioning any public record from any Court oroffice; and (v) issuing commissions for examination ofwitnesses." 8.Thus, it is for the purpose of determining the amount of compensation where noagreement is reached that a Tribunal is constituted and though a dispute isresolved by passing an award as contemplated under sub-section (5) of Section14, but such an order cannot be construed as a decree, as the Tribunal is not aCourt. 9.Section 17 provides for the manner in which the compensation is said. It stipulates : - "17.Payment of compensation .- (1) Any compensation payableunder this Act may be tendered or paid to the persons interested entitledthereto, and the Central Government shall pay it to them unless prevented bysome one or more of the contingencies mentioned in sub-section (2). 9.Section 17 provides for the manner in which the compensation is said. It stipulates : - "17.Payment of compensation .- (1) Any compensation payableunder this Act may be tendered or paid to the persons interested entitledthereto, and the Central Government shall pay it to them unless prevented bysome one or more of the contingencies mentioned in sub-section (2). (2)If the persons interested entitled thereto shall not consent to receive it orif there be any dispute as to the sufficiency of the amount of compensation orthe title to receive it or the apportionment thereof, the Central Governmentshall deposit the amount of compensation with the Tribunal: Providedthat any person admitted to be interested may receive such payment underprotest as to the sufficiency of the amount: Provided further that every personwho claims to be an interested person (whether such person has been admitted tobe interested or not) including the person referred to in the preceding provisoshall be entitled to refer a claim for compensation before the Tribunal: Provided also that no person who has received the amount otherwisethan under protest shall be entitled to prefer any such claim before theTribunal. (3)When the amount of compensation is not paid or deposited as required by thissection, the Central Government shall be liable to pay interest thereon at therate of five per centum per annum from the time the compensation became dueuntil it shall have been so paid or deposited." 10.Keeping in view the object of the Act of 1957 and various provisions thereinpertaining to method of determining the compensation and the payment thereof asalso the following observations of Their Lordships in Diwan Brothers (supra):- "6.A perusal of the above observations will give a clear insight into the variousobjects of the Act and the main purposes which the Legislation sought toachieve. It will be noticed that the Minister laid particular stress on thepaying capacity of the debtors which he called a humane consideration and alsodescribed the necessity of giving relief to the displaced persons against thehuge amount of money which they may have to pay as Court fees. Thus, it wouldappear that the intention of Parliament was to bring out a Legislation whichwould provide for a cheap and expeditious remedy to the displaced persons andentrust the work to a Tribunal which may be able to decide the claims quicklyinstead of leaving the displaced debtors of creditors to follow the dilatoryand cumbersome process of the Civil Courts. Thus, it wouldappear that the intention of Parliament was to bring out a Legislation whichwould provide for a cheap and expeditious remedy to the displaced persons andentrust the work to a Tribunal which may be able to decide the claims quicklyinstead of leaving the displaced debtors of creditors to follow the dilatoryand cumbersome process of the Civil Courts. In order to shorten the litigationthe Minister expressly stated that only one appeal had been provided in Section40 of the Act, to the High Court. These matters will have a very importantbearing on the interpretation of the provisions of the Court Fees Act asapplicable to the decrees passed by a Tribunal under the Act. liven apart fromthese considerations, it is well settled that in case of a fiscal statute theprovisions must be strictly interpreted giving every benefit of doubt to thesubject and lightening as far as possible the burden of Court fees on thelitigant. Thus, where an adjudication given by a Tribunal could fall within twoprovisions of the Court Fees Act, one of which was onerous for the litigant andthe other more liberal, the Court would apply that provision which wasbeneficial to the litigant. 18.Secondly, as pointed out, the object of the Act is to benefit displaced personsby providing them to cheap and expeditious remedy. The argument of Mr. Singhfor the respondents that the Legislature wanted the claimants to pay heavyCourt fees it" they lost before the Tribunals is totally inconsistent with the aim and object of the Act. If the displacedclaimants were given the right to have their claims determined on a nominalCourt fees and if only one right of appeal was provided, it surpasses one'scomprehension why the Legislature should have intended that even if wrongorders were passed by the Tribunal, the claimants should have to pay heavyCourt fees if they wanted to file an appeal to the High Court. If the intentionof the Legislature was to provide a cheap and expeditious remedy to theclaimants, then the remedy would be incomplete if it was given only at theoriginal stage and not at the appellate stage." ThisCourt is of the considered view that only fixed Court fees is payable on thememo of appeal preferred under sub-section (1) of Section 20 of the Act of1957. The office objection regarding payment of ad valorem Court fee is overruled. Letthe matter now be posted for admissions in due course.