Buland Shahar Khurja Development ... vs Smt. Savita
2019 Latest Caselaw 4796 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

												          									      A.F.R.
 
Court No. - 59
 

 
Case :- FIRST APPEAL No. - 138 of 1998
 
Appellant :- Buland Shahar Khurja Development Authority
 
Respondent :- Smt. Savita
 
Counsel for Appellant :- A.K. Srivastava,B. Dayal
 

 
Hon'ble Surya Prakash Kesarwani,J.

1- Heard Sri B. Dayal, learned counsel for the appellant. No one appears on behalf of the respondent.

2- The present first appeal arises from the impugned common judgment passed in LAR No.164 of 1992.

3- By the impugned common judgement passed in LAR Nos. 165,167,163, 164 and 166 all of 1992, the reference court determined compensation @ Rs. 400/- per Sq. yard along with other statutory benefits and interest.

4- Learned counsel for the appellant submits that by Notification dated 20.12.1988, under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act'), land measuring about 98 Bighas situate in village Akbarpur, Pargana Baran, district Bulandhshr, was acquired for establishing residential colony. He further submits that First Appeal No. 192 of 1998 arising from judgment in LAR No.162, First Appeal No.168 of 1998 arising from judgment in LAR No.167, First Appeal No.139 of 1998 arising from judgment in LAR No.166 were allowed on 20.4.2004 and First Appeal No.121 of 1995 arising from judgment in LAR No.163 of 1992 was allowed  on 25.5.2018 by this Court and the matters were remanded to the court below for decision afresh and the impugned common judgment  has been set aside.

Refund of Court Fees:

5- Learned counsel for the claimant-appellant now submits that in view of the provisions of Section 13 of the Court Fee Act, 1870 (hereinafter referred to as the 'Act') the Court fee paid on memorandum of above noted appeal in this Court, is liable  to be refunded.

6- I have carefully considered the submissions of the learned counsel for the appellant.

7- Section 13 of the Court Fees Act, 1870 provides as under:

"13. Refund of fee paid on memorandum of appeal.-If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the 1 Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal: Provided that, if in, the case of a remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded".

8- The aforesaid provision was explained by Full Bench of this Court in Chandra Bhushan Misra v. Smt. Jayatri Devi, AIR 1969 Allahabad 142 and the order for refund of the Court fees was passed. The said judgment relates to Court fees paid on memorandum of second appeal. The aforesaid Full Bench judgment was challenged by the State of U.P. before Hon'ble Supreme Court in State of U.P. v. Pt. Chandra Bhushan Misra, (1980) 1 SCC 198 (Paragraph Nos. 2,3, 4 and 5) and Hon'ble Supreme Court held as under:

2."Section 13 of the Court Fees Act 1870, in so far as it is material is as follows:

"If an appeal or a plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure as ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in s. 351 of the same code for a second decision of a lower court, the lower court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal".

Section 13, thus speaks of a suit remanded in appeal on any of the grounds mentioned in section 351 of the same Code i.e. the Code of Civil Procedure which was then in force. Section 351 of the Code of Civil Procedure 1859 provided for the remand of a case by the appellate court to the lower court for a decision on the merits on the case. where "the lower court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact whish shall appear to the appellate court essential to the rights of the parties". If the decision on the preliminary point was reversed by the appellate court. The Code of 1859 was repealed and replaced by the Code of 1877. Section 562 of the 1877 Code was substantially in the same terms as section 351 of the 1859 Code. The Code of 1882 was repealed and replaced by the Code of Civil Procedure 1908. Order XLI Rule 23 of the 1908 Code also provided for the remand of a case to the lower court by the appellate court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the appellate court. In exercise of the powers vested in it under section 122 of the Code of Civil Procedure 1908, the Allahabad High Court amended the provisions of Order XLI Rule 23 so as to provide for the remand of a case by the appellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice. The question for consideration in this appeal is whether the power to grant refund of court fees under section 13 of the Court Fees Act 1870 was attracted to a case where the appellate court remanded the case to the lower court in the interest of justice as provided by the provisions of Order XLI Rule 23 as amended by the High Court of Allahabad.

3. In order to answer the question a reference is necessary to section 158 of the Code of Civil Procedure 1908. It was as follows:

"158. In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, Section or rule".

It follows from Section 158 that reference in Section 13 of the Court Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859 has to be read as reference to Order XLI Rule 23 of the Code of Civil Procedure 1908. The submission of the learned counsel was that the reference to any provision of the Code of Civil Procedure 1908 pursuant to section 158 of the Code must be to provision occurring in the body of the main code consisting of the provisions from section 1 to section 158 and not to the provisions of the rules in the first schedule. He further submitted that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature itself and not as amended by the High Court. The first part of the submission of the learned counsel has to be rejected straightaway having regard to the express reference to 'Order' and 'Rule' in section 158 of the Code of Civil Procedure 1908. The second part of the submission requires a slightly closer examination. Section 2(1) of the Code of Civil Procedure 1908 defined "Code" as including "Rules". Section 2(18) defined "Rules" as meaning "Rules and forms contained in the first schedule or made under section 122 or section 125". Section 121 of the 1908 Code declared that the rules in the first schedule shall have effect "as if enacted in the body of the code until annulled or altered in accordance with the provisions of part X of the Code" (section 121 to 131). Section 122 enabled the High Court to make rules, from time to time "regulating their own procedure or the procedure of the Civil code subject to their superintendence, and made by such rules, annual, alter or add to all or any of the rules in the first schedule". Section 126 made the rules made by the High Court subject to the previous approval of the Government of the State. Section 127 provided that the rules so made and approved shall have the same force and effect as if they had been contained in the first schedule. These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes. That is the clear effect of the definition of the expressions "Code" and "Rules" and sections 121, 122 and 127. It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear. We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi, regarding the effect of section 158 of the Code of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.

4. Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 23, as originally passed by the Legislature and not as amended by the High Court. In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.

5. We are of the view that the question was rightly answered by the Full Bench of the Allahabad High Court and the appeal is, therefore, dismissed".

9- Recently, while dealing with the land acquisition matters in Surendra Singh v. State of Haryana and others, (2018) 3 SCC 278 (Paragraph Nos. 38,39 and 40) Hon'ble Supreme Court held a under:

"38. Since we have remanded these cases to the Reference Court for fresh adjudication on merits in accordance with law, the appellants (land owners) are entitled to get back the amount of court fee paid by each appellant (land owner) on his appeal memo before the High Court as also before this Court as provided under Section 13 of the Court Fees Act.

39. The Registry is accordingly directed to issue necessary certificate of refund of Court Fee amount, if paid by any of the landowner on his memo of appeal in the High Court and in this Court under the Court Fees Act to enable the landowners to claim the refund of the court fee amount from the State Treasury concerned.

40. If for any reason, it is not possible for the Registry of this Court to issue refund certificate of the court fee amount paid by the appellant landowners on their memo of appeals filed in the High Court on their respective appeal memo then the requisite certificate shall be issued by the High Court concerned as per the Rules in favour of each appellant landowner under the Court Fees Act".

10- The words "on any of the grounds mentioned in section 351 of the same Code" as used in Section 13 of the Act, 1870 has been held by Hon'ble Supreme Court in the case of Pt. Chandra Bhushan Misra (supra) to be referable to Section 351 of the Code of Civil Procedure 1859. Refund of court fees under Section 13 of the Court Fees Act, has been exhaustively explained by Hon'ble Supreme Court in the aforesaid case of Chandra Bhushan Misra.

11- So far as the question of refund of court fees under section 13 of the Court Fees Act,1870 in land acquisition appeal is concerned, the Hon'ble Supreme Court, has provided in the case of Surendra Singh (supra) for refund of court-fees, while remanding the matter to the reference court for fresh adjudication on merits in accordance with law.

12- Thus, in view of the law settled by Hon'ble Supreme Court in the case of Pt. Chandra Bhushan Misra (supra) and Surendra Singh (supra), I find no difficulty to accept the submission of the learned counsel for the appellant for refund of Court-fees. Therefore, it is provided that the appellant is entitled for refund of court fees paid by him on his memorandum of the present first appeal in terms of the provisions of Section 13 of the Court-Fees Act. Necessary certificate under Section 13 of the Act, shall be granted to the appellant.

13 - In view of the aforesaid, this first appeal is also allowed. The impugned judgment of the reference court in LAR No.164 of 1992 is set aside. LAR No.164 of 1992 is restored to its original number. The matter is remanded to the reference court for decision afresh in accordance with law. For refund of court fees paid on the memorandum of appeal, a certificate shall be granted to the appellant under Section 13 of the Court Fees Act. The reference court shall decide LAR No.164 of 1992 along with above referred all land acquisition references, if still pending, within six months from the date of presentation of a certified copy of this order, without granting any unnecessary adjournment to either of the parties.

14- Lower court record shall be returned by the office to the court below positively within two weeks.

Order Date :- 21.5.2019

Ak/