Delhi High Court
Sarkar Daulat Madar Makbuja ... vs Union Of India & Ors on 20 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:-20th September, 2018.
+ LA.APP. 178/2018 & CM No.36657/2018 (for stay).
SARKAR DAULAT MADAR MAKBUJA (KHERA KHURD)
..... Appellant
Through: Mr. Vikram Saini and Ms. Chhaya
Sharma, Advs. along with Mr.
Parmjit Singh, EE in Irrigation Deptt.
Haryana).
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjay Kumar Pathak, Amicus
Curie .
Ms. Jyoti Tyagi for Mr. Yeeshu Jain,
Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 10th September, 2018, when this appeal came up first, the
following order was passed:-
"3. This appeal under Section 54 of the Land Acquisition Act,
1894 against an order on a Reference under Section 30-31 of
the Act is listed subject to office objection as to the court fees
paid thereon.
4. The appellant has paid court fees of Rs.200/-. According
to the Registry, ad-valorem court fees have to be paid.
5. The counsel for the appellant had the appeal listed by
making endorsement that he will satisfy this Court that ad-
valorem court fees is not to be paid.
6. The counsel for the appellant draws attention to Section 8
of the Court Fees Act, 1870 as under:
"8. Fee 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."
and contends that an appeal under Section 30-31 of the Land
Acquisition Act is only regarding apportionment of compensation
and will not fall under Section 8 of the Act. However, on enquiry,
under which provision it will then fall, the counsel for the
appellant seeks one week's time and states that prevalent practice
has been that no court fees is payable on such appeals and he has
confirmed so from his seniors as well.
7. The prevalent practice cannot be a substitute for law.
8. Even otherwise, Section 8 provides for an appeal against
an order "relating to compensation under any Act for the time
being in force for acquisition of land for public purpose". It does
not make any distinction between an appeal for enhancement of
compensation or an appeal for enhancement of share awarded in
the compensation. Once Section 8 of the Act provides for
"compensation under any Act", it would mean the entire Land
Acquisition Act and would not be restricted to compensation
under Sections 18 to 27 of the Land Acquisition Act.
9. Mr. Sanjay Kumar Pathak, Advocate for Land Acquisition
Collector (LAC) present in Court, on enquiry states that the
appellant will have to pay court fees on the difference claimed.
9. The counsel for the appellant states that the share of the
appellant in the compensation awarded has been held to be 20%,
while according to the appellant, it should be 100%.
10. Mr. Sanjay Kumar Pathak, Advocate states that the
appellant will have to pay court fees on the additional 80%
claimed. However, he is also unable to cite any provision of law
or
case law, though states that there are some judgments to this
effect.
11. While Section 26 of the Land Acquisition Act provides for
the order / judgment on a Reference under Section 18 to have the
force of a decree, no such provision is found with respect to
Reference under Section 30-31 of the Act.
12. A perusal of the Court Fees Act shows the same in
Schedule II thereof, at Serial No.11, to be providing for court fee
of Rs.2/- only on memorandum of appeal when the appeal is not
from a decree or an order having force of a decree and is
presented to a High Court. Once it is found that the order on a
Reference under Section 30-31 has not, under the Land
Acquisition Act, been given the force of a decree, the possibility of
an appeal as the present one, falling under Serial no.11 of
Schedule II of the Court Fees Act and fixed court fees being
payable on such appeal, cannot be ruled out.
13. The counsel for the respondent no.1 appearing on advance
notice to also look into the said aspect.
14. Mr. Sanjay Kumar Pathak, Advocate is requested to, as
Amicus Curiae assist the Court on the aforesaid legal question.
15. List on 20th September, 2018."
2. The counsel for the appellant today states that he has not found any
judgment on the subject and has nothing further to argue.
3. Mr. Sanjay Kumar Pathak, Advocate/Amicus Curie, has drawn
attention to Daryodh Singh Vs. Union of India 1965 SCC OnLine P&H 89
where the Full Bench, sitting as a Circuit Bench of Punjab High Court at
Delhi, also was concerned with the question of court fees on such an appeal
and the contention of the counsel for the appellant was, that fixed court fees
under Article 11 of Schedule II of the Court Fees Act, 1870 is payable
thereon. It was further the contention that the claim in the appeal was for a
declaration of title and not a claim to compensation or enhancement of
compensation and the dispute related merely to apportionment of
compensation inter se claimants i.e. of title. On the contrary, the contention
of Union of India was that ad valorem court fees under Section 8 of the
Court Fees Act is payable. It was held that (a) the scheme of the Land
Acquisition Act discloses that the Collector, Reference Court as well as the
High Court are only called upon to determine the matters pertaining to
compensation; (b) the dispute in such matters may relate to area of land
acquired, its quality and the amount of compensation payable for it as well
as the persons who are entitled to compensation or apportionment; (c)
whatever form the dispute assumes, it, all the same, is a dispute relating to
compensation; (d) apportionment as divorced from compensation, has no
meaning;it is the compensation money which has to be apportioned between
various persons having interest in the land acquired; (e) owing to wide
definition of "persons interested" in Section 2(b) of the Land Acquisition
Act, disputes as to apportionment sometimes assume considerable
proportion; (f) seen in this light, the matter of court fees presents no
difficulty, for the words of Section 8 of the Court Fees Act are clear and
unambiguous; and, (g) the dispute as to apportionment, would be a dispute
relating to compensation and being a dispute under the Land Acquisition
Act, where the land has been acquired for a public purpose, the court fees
has to be computed according to the difference between the amount
awarded to the appellant and the amount claimed by the appellant. The Full
Bench relied, in extenso, on Ananda Lal Chakrabutty and Ors. AIR 1932
Cal 346.
4. The learned Amicus Curie has also drawn attention to the dicta of the
Division Bench of this Court in Custodian of Evacuee Property, New Delhi
Vs. Daryodh Singh 1971 SCC OnLine Del 9 following the Full Bench
aforesaid.
5. The learned Amicus Curie has also drawn attention to Balakrishnan
Nambiyar Vs. Kanakathidathil Madhavan AIR 1979 Kerala 40 (Full
Bench), though in relation to the Kerala Court Fees and Suits Valuation
Act, 1959 but having pari materia provisions and also holding ad valorem
court fees to be payable.
6. Though neither Ananda Lal Chakrabutty nor Daryodh Singh supra
considered, what was pointed out by me in order dated 10 th September,
2018 reproduced above, that while Section 26 of the Land Acquisition Act
provides for the order/judgment on a Reference under Section 18 to have
the force of a decree, no such provision is found with respect to Reference
under Section 30/31 of the Act, and for which reason I am unable to agree
therewith but since the consistent view at least of this Court since 1965 i.e.
for last over half a century has been that ad valorem court fees under
Section 8 and not fixed court fees under Article 11 Schedule II of the Court
Fees Act is payable, it is not deemed appropriate and it is not in my
jurisdiction to refer the matter to a Larger Bench.
7. Resultantly, it is held that in appeal under Section 54 of the Land
Acquisition Act against a judgment in a Reference under Sections 30 and 31
of the said Act, ad valorem court fees on the excess share claimed of a
compensation is payable.
8. Subject to the appellant, without prejudice to its rights and
contentions, making up deficiency in court fees within four weeks, issue
notice.
9. Notice is accepted by the counsel for the respondent no.1 Union of
India (UOI).
10. The appellant to take steps for service of the respondents no.2 to 5 by
all modes including dasti and through the advocate for the respondents no.2
to 5 before the Reference Court, returnable on 5th December, 2018.
11. It is further ordered that compensation stated to be deposited before
the Reference Court be not released to any party.
12. The Court expresses its gratitude to Mr. Sanjay Kumar Pathak,
Advocate, for assistance rendered to the Court.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 20, 2018
'pp'..
