Sahadu Gangaram Bhagade v. Spl. Deputy Collector, Ahmednagar and Another

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2528 of I 969. Appeal by special leave from the order dated March 6, 1969 of the Bombay High Court in Civil Revision Application No. 187 of 1967. S. V. Gupte, P. H. Parekh and R. B. Datar, for the appellant. G. L. Sanghi, B. D. Sharma for S. P. Nayar, for the respondents. The. Judgment of the Court was delivered by Hegde, J. This appeal by special leave, appears to 'have been brought as a test case. It arises from one of the 116 crossobjections filed in an appeal brought by the Special Deputy Collector, Ahrnednagar to the High Court of Maharashtra, under s. 11 of the Requisitioning and Acquisition of Immovable Property Act, 1952 (Act 30 of 1952) (to be hereinafter referred to as the Act) against an award made by the arbitrator under s. 8 ( 1 l of that Act. The controversy in this appeal is ac to the relevant provision of the Bombay Court Fee Act, 1959 under which the coart- .

148 (1971] l S.C.R. fee is payable on the claim made in the memora.ndum of crossobjection. According to the appellant on the claim in questi:Jn a fixed court-fee of Rs. 5 is payable under Art. 13 of Sch. II of the Bombay Court-Fee Act, 1959 but according to the State ad valorem court-fee is payable on that claim in question either under Article 1 or Art. 3 of Sch. I of that Act. The High Court has come to the conciusion that on the claim made by the appellant ad va/orem court-free is payable under Art. 3 of Sch. I of the Bombay Court-Fe~ Act, 1959. The appellant challenges that conclusion. Lands belonging to the appellant and several others situate in T1luka Parmar, District Ahmednaga~ were requisitioned on March 10, 1944 .. Thereafter they were acquired on September 22, 1957 under the provisions of the Act. In respect of the· said acquisition, the appellant claim~d ;1 sum of Rs. 12,173/49 P. as compensation but the Special Land J.cquisition Officr oftered him only Rs. 3,033/59 P. In view of this difference, the matter was referred to the arbitrator as provided in s.

8 ( l ) (b) of the -:\.ct. The arbitrator awarded a sum of Rs. 5,980/55 P. As against that award, the Special Deputy Collector went up in appeal to the High Court of Maharashtra. The appellant filed a crossobjection claiming an additional compensation of Rs. 3,323/93 P. On that claim he paid a fixed court-fee of Rs. 5. The Taxing Officer assessed the court-fee payable at Rs. 250 and demanded the appellant to pay an additional court-fee of Rs. 245. The appellant's revision to the High Court was summarily dismissed. Thereafter this appeal wa, brought. It was urged by Mr. S. V. Gupte, learned Counsel for the appellant that the Hi.!!h Court was in error in holding that the court-fee in respect of the claim mn'cfe by his client is payable under Art. 3 of Sch. I and not under Art. 13 of Sch. II of the Bombay Court-Fee Act, 1959. According to him Art. 3 of Sch.

I applies only to plaint. annlication or netition (including memo· randum of apoeal) to set aside or modify any award made bv a civil court. The arbitrator annointed under s. 8 of the Act is not a civil court; he is only a tribunal. Therefore an anneal agai·rist his order comes within Art. 13 of Sch. II. The learned Counsel for the Snecial Denutv Collector on the other hand contenifed that the anorooriate Art. under which the court-fee is navahle is either Art. 3 or Art. J of Sch. T. Jn sunnort of his contention he nlnred "re at deal of reliance on s. 7 ( l ) of the Bombay Court- Fee Act, 1959. Section 8 ( 1) of the Act reads :- . "Where any rrronertv is reoukitioned or acquired under this Act, ·there shall be paid compensation the t SAHADU v. DY.

COLLECTOR (Hegde, J.) amount of which shall be determined in the manner and in accordance with the principles hereinafter set out, that is to say,- (a) where the amount of compehsation can be fixed by agreement, it shall be paid in accordance with such agreement; (b) where no !UCh agieement can be reached, the Central Government shall appoint as arbitrator a person who is, or has been, or is qualified for appointment as a Judge of a High Court; ( c) the Central Government may, in any particular case, nominate a person having expen knowledge as to the nature of the property requi§itioned or acquired to assist the arbitrator and where such nomination is made, the person to be compensated may also nominate as assessor for the same purpose; (d) at the commencement of the proceeding; before the arbitrator, the Central Goverrunent and the person to be compensated shall state what in their respective opinion is a fair amount of ~ompensation;

( e) the arbitrator shall, after hearing the dispute make an award determining the amount of compensation which appears to him to be just and specifying the person or persons to whom such compensation shall. be paid; and in making the award, he shall have regard to the circumstances of each case and the provisions of subsections (2) and (3), so far as they are applicable; (f) where there is any dispute as to the person or persons who are entitled to the compensation, the arbitrator shall decide such dispute and if the arbitrator finds that more persons than one are entitled to compensation, he shall apportion the amount thereof amongst such persons; (g) nothing in the Arbitration Act, J 940 shall apply ot arbitration under this section." Section 9 says :

"The amount of compensation payable under an award shall, subject to any rules made under this Act, he paid by_ the competent authority to the person or persons entitled thereto in such manner and within such time as may be specified in the award". • - 150 . SUPREME COURT RE\CJRTg [1971] l S.C.R . · .Section 11 provides for an appeal to the High Court against the award made by the arbitrator. In the Act there is no provision - similar to sub-s. (2) of s. 26 of the Land Acquisition Act, 189-1 whereunder every awatd made by pie Lands Acqms1tion Officer is to be deemed to be a decree \lf court. Therefore the question whether the award made under s. 8 of the Act is executable c1r not is a matter that requires ,further consideration. For the present, we shall proceed on the basis that it is not executable. But s. 9 ,of the Act requires the competent authority to pay the compensatilm awarded to the person or persons entitled thereto.

Therefore we are unable to accept the contention of the learned Counsel for the appellant that the award made by the arbitrator is something which has no effect and therefore it cannot be considered as an order. It is true that it is not an 'order' as defined in the Civil Procedure Code, the same having not been made by a civil court. But the expression 'order' is not defined in the Act. The award of the arbitrator is undoubtedly a formal expressi,m of a decision made by a competent authority. Further it is a decision binding on the parties to the proceedings in which it ;s made. Therefore the question whether the order in question is executable or not appears to us to be irrelevant for the purpose of determining the point in issue.

Section 5 ( 1) of the Bombay Court-Fee Act, 1959, provides that no document of any of the kinds specified as chargeable in the first or seco.nd schedule to this Act annexed shall be filed. exhibited or recorded in any Court of Justice or shall be received or furnished by any public officer, 1 unless in respect of such <locuinent there has been paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. Section 7 ( I ) of that Act provides : "7 ( 1) The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under q_ny 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 anc\ the amo•mt claimed by the appellant." This provision is similar to s. 8 of the Court-Fee Act, 1870. It clearly applies to an appeal filed under s. 11 of the Act.

It is true that provision is not a charging section. It only provides for the computation of the court-fee payable. But that provision makes it clear that it relates to the computation of a court-fee payable on ad valorem basis. It can have no connection with anv Art. providing for the payment of fixed court-fee. Therefore the computation provided under that provision can oniy be of a r .)f.JIADIJ v. DY. COLLECTOR (Hegde, J.) court-fee payable under one or tL .,.i1e1 article in Sch. I. Dealing with the scope of' 8 •" ;:,e Court-fee Act, 1870 Rankin C.J. in Anandalal r·;,,,; .. r~barti(') observed: .• :ction 8, while not itself imposing any fee upon any one, prcvides a rule for computation of the fee payable under the Act in a certain class of cases. What it says is that, in the class of cases, which it deals with, the amount of fee payable under the Act on a memorandum of appeal, it is to be computed according to the difference between the two sums.

Now, that section standing in the text of the Act proceeds clearly upon the assumption that otherwise in the Act there is charge whicll is an ad va/urem charge and is not a fixed charge; ........ The provisions of s. 8, involving as the} do that fee in the class of cases dealt v.ith is an ad valorem fee, are themselves suffici "11 to exclude any question of Art. 11 of Schedule JI being made applicable to such cases. It is not necessary to consider whether the Tribunal's award, which is an order and not a decree, is an order having the force of a decree. Whatever the effect of that phrase may be, section 8 shows one perfectly clear that an appeal regarding compensation in a Land Acquisition case is not under Article 11 of Schedule II, because it is not a fixed fee at all .......... " We see no force in the contention that before s.

7 ( ll of the Bombay Court-Fee Act, 1959 can be attracted to an appeal, the order under appeal must have the force of a decree .. 'fhat section does not say so. It would not, therefore, be proper on our part to add the words "having the force of a decree" after the word 'order' in s. 7 ( 1). In fact that section is so plain as not to require any interpretation. In that view, it is not necessary for us to consider any of the Articles in Sch. II of the Bombay Courtfee Act, 1959. All that we have to see is under which Art. of Sch. I, the court-fee is payable. For the appellant it matters little whether he is asked to pay court-fee either under Art. 1 or Art. 3 of Sch. I, the court-fee .payable under both the Arts. being the same. We are in agreement with the High Court that Art. 3 of Sch. I is the relevant Art. That Art. provides for the payment of ad valorem court-fee at the rates prescribed in Art. 1 of Sch. I on appeal petitions. (I) (193!] I.L.R.59 Cal. 528.

SUPREME COURT /\EPORTS [1971 J 1 s.c.R. The learned Counsel for the appellant urged that Art. 3 of Sch. I of the Bombay Court-fee Act, 1959 is inapplicable because that Art. refers to "plaint, application or petition (including memQ- randum of appeal), to set aside or modify any award otherwise than under the Arbitration Act, 1940". Before Art. 3 of Sch. I can be attracted, there must be ( 1) a plaint, application or petition (including a memorandum ot appeal); (2) in that.plant, application or P,etition (including memorandum Of appeal), then~ must· be a prayer to set aside or modify any award and (3) the award in question must not be one under the Arbitration Act, 1940. There is no dispute that the proceedings with which we are concerned in this case fulfil two out. of the three requirements enumerated above.

The award concerned in the' proceedings is not one made under !he Arbitration Act, ;1940 and through his cross objection proceedings the appellant seeks to get the award modified. The only point in controversy is whether the crlf;s-objection filed by the appellant can be considered as "application or petition" within •he meaning of Art. '3 of Sch. I. The words in the bracket "including memorandum of appear' in our opinio,n refer to the word 'petition' immediately preceding those words. In other words the word 'petition' includes the memorandum of appeal as well. The question is whether a cross-objection filed by a respondent in an appeal can be considered as a memorandum of appea:. We have no doubt that it is ·a memorandum of appeal in substance thoi1gh not in form. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of _cross objection is but one form of appeal.

It takes the place of a ·cross-appeal. It is true that while Art. 1 of Sch .. I refers to 'cr()ss-objection', Art. 3 of that Sch. does not refer to cross-objection as such but that in our opinion makes no difference. It is only an inartistic drafting. For the reasons mentioned above, we think that the <lecisioa of the High Court in The Chatusshakhiya Brahmavrinda Gavaran Trust v. Union of India(') is correct. In this view, it is not necessary for us to consider the cotreclness of the decision of the Punjab High Court in Shri Kanwar Jagat Bahadur Singh v. The Pul!ja/> State('). In the result this appeal fails and the same is dismissed. No costs. G.C. Appeal dismissed. (I) 7;; B. L. R. 4J7. (2) [t657] l.L.R. Punjab p. 142.