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Regular First Appeal No. 107 of 1959, decided on 19th April, 1960.

S. 8, Sch. I, Art. 1, Sch. II, Art. 17 (iv)‑Court‑fee on Government appeal from decree of Court under Land Acquisition Act (I of 1894)‑Payable ad valorem under Sch. 1, Art. I‑Analogy from S. 8‑Land Acquisition Act (I of 1894), S. 26 (2)‑Secy. of State v. Basawa Singh 57 P R 1913 (Civil) dissented from.

Held, that the court‑fee on a Government appeal from a decree of Court under the Land Acquisition Act (I of 1894) is payable ad valorem under Shedule I, Article 1, Court Fees Act (VII of 1870) and is not a fixed fee under Shedule. II, Article 17 (iv).

The above result was arrived at on analogy from section 8 of the Act.

Under the law as it now stands the two alternatives are section 8 and Schedule I, Article 1. The only difficulty appears to be that whereas, in the case of appeals by claimants, section 8 of the Act, which is not itself a charging section, lays down the manner in which the court‑fee is to be computed, there is no corresponding provision prescribing the method of computation of the court‑fee in the case of an appeal by the State, and if to cover the case of claimants, it was considered necessary to add a special section, it is unfortunate that no similar provision exists in the case of State appeals. It would, however, be in the highest degree inequitable that whereas a claimant is compelled by section 8 to pay ad valorem court‑fee, the State should be entitled to file an appeal on payment of a fixed court‑fee of Rs. 10, and there is no doubt that though section 8 does not in terms apply to State appeals, its provisions should be invoked by analogy, and the court‑fee in appeals by the State fixed under Article 1 of Schedule I of the Court Fees Act, 1870.

Debi Din v. Secretary of State A I R 1939 All. 127 ref.

Secretary of State for India v. Basawa Singh 57 Punjab Record 1913 (Civil) dissented from.

Secretary of State v. K. S. Bennerjee A I R 1927 Cal. 45 ; A I R 1924 Mad. 489 and Secretary of State v. P. Baij Nath A I R 1932 Oudh 224 ref. (in order of reference).

Ghulam Abbas Jaffery for A. G. for Appellant.

Nemo for Respondents.

Muhammad Ishaq Khan D. R. R. (Stamp Reporter).

This case has come before me on the taxing We, The facts are that the Government of West Pakistan acquired, for the purpose of construction of a godown for the storage of food grains, 6 kanals 17 marlas of agricultural land, owned by Khuda Bakhsh and others. The Collector awarded compensation to the owners in the sum of Rs. 11,927, including the compulsory allowance of 15 per cent. payable under section 23 (2) of the Land Acquisition Act (I of 1894). From the above order of the Collector Qadir Bakhsh and his co- owners lodged objections under section 18 of the Act, which were referred by the Collector to the Court of the Senior Civil Judge, Multan. By his order dated the 4th of April 1959 the Court raised the amount of compensation to Rs. 36,815‑9‑7, including the 15 per cent compulsory acquisition allowance.

2. Against the above order of the learned Senior Civil Judge, the Province of West Pakistan filed an appeal in this Court on which a fixed court‑fee of Rs. 10 only was paid. The stamp Reporter raised a preliminary objection to the effect that under section 8, read with Schedule I, Article 1, of the Court Fees Act ad valorem court‑fee should have been paid on the memorandum of appeal on the difference between the amount fixed by the Collector and that awarded by the learned Senior Civil Judge, namely, Rs. 24,898‑9‑7. The learned Advocate General did not accept this view, and the matter was referred, first to the Taxing Officer, and then by the latter to the Taxing Judge.

3. Mr. Ghulam Abbas Jafri for the Advocate‑General argued the case at considerable length, but, in my opinion, the stand taken by the Stamp Reporter is correct.

4. The case relied upon by the State is Secretary of State for India v. Basawa Singh (57 Punjab Record 1913 (Civil)) a Division Bench decision of the Punjab Chief Court, and it is true that the authority in question is in its favour, but, with the greatest respect, I am unable to agree with it. The facts of that case were that an area of 29 bighas 7 biswas of land was acquired, apparently by Government, and the Collector awarded compensation at the rate of Rs. 100 per bigha, plus 15 per cent for forcible acquisition and interest at 6 per cent. per annum from the date of taking possession to the date of the award, the total sum amounting to Rs. 3,773‑3‑1. On a reference to the Divisional Judge, Hissar, the amount was increased to Rs. 11,740 at the rate of Rs. 400 per bigha, inclusive of 15 per cent. for forcible acquisition. From the judgment it is clear that the only question before the Court was that of the interpretation of section 24, clause 5 of the Land Acquisition Act, which runs:‑--

"The Court shall not take into consideration any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired."

The only reference to the court‑fee payable is contained in the final paragraph

"For these reasons we decree the appeal and reduce the amount payable for the land in suit to Rs. 100 per bigha plus 15 per cent. For forcible acquisition and 6 per cent. interest from the date of the acquisition or taking possession to the date of the Collector's award, i.e., Rs. 3,778‑3‑1. The respondents will pay the appellant's costs in this Court, including the court fee of Rs. 10 which is adequate under Article 17 (iv) of the II Schedule to the Court Fees Act section 8 of the Act being applicable only to appeals by persons claiming com pensation."

5. No reasons have been given by the learned Judges for holding Article 17 (iv) of Schedule II to the Court Fees Act to be applicable to the facts of the case, and it would appear that the point was not specifically raised.

6. Section 8 of the Court Fees Act runs‑

"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 purpose shall be computed according to the difference between the amount awarded and the amount claimed by the appellant."

The question of whether this section is applicable to an appeal by Government against the amount of compensation awarded by the Collector is one on which the various High Courts have held different opinions, but the Punjab Chief Court ruling referred to above is unique in this respect, that it is the only one in which a fixed court‑fee has been held to be payable under Article 17 (iv) of Schedule II of the Act, and this view has been expressly dissented from by all the other High Courts that have had the occasion to discuss it.

7. Section 26 (2) of the Land Acquisition Act gives such awards the force of a decree. The award by the learned Senior Civil Judge in this case is consequently a decree, and the appeal filed by Government an appeal from a decree. The Allahabad and Calcutta High Courts have held that section 8 of the Act is expressly applicable to such an appeal. In Debi Din v. Secretary of State (A I R 1939 All. 127) Bennet, J. held in discussing the question of whether section 8 or Article 17 (iv) of Schedule II is applicable to an appeal by Government, that the latter provision, which deals with applications to set aside an award, has no application, since the relief sought in such cases is not the setting aside of the award but its modification. Referring to a previous un reported decision by a learned Single Judge of the Allahabad High Court Secretary of State v. Babu Ramji Das (First Appeal No. 348 of 1931), the learned Judge remarked:‑-

"The view of King, J. was that the words amount claimed by the appellant' meant the amount which the appellant claimed to receive and could not be applied to the amount which the appellant claimed he should pay. He held that in the case of an appeal by the person claiming compensation against the decision of the tribunal of an Improvement Trust, such as the present one before me, the appeal would properly bear an ad valorem court‑fee under section 8, Court Fees Act, but that in the case of an appeal by the Secretary of State this section would not apply. In regard to the difficulty felt by King, J. in applying the words amount claimed by the appellant' to the Secretary of State the construction of these words in the method which I have mentioned does not seem to have occurred to him, and on this view there is no difficulty in applying the words to the Secretary of State who is claiming that he should pay a less amount. On the other hand, the decision of King, J., involves a great difficulty in bringing the case at all under Article 17 (iv) of Sch. II because, as I have pointed out, the appellant asks for an award to be granted and not for the mere setting aside of an award. The view therefore of King, J. involves a greater difficulty than the difficulty which he sought to avoid."

Again, in Secretary of State v. K. S. Bennerjee (A I R 1927 Cal. 45) it was held that the inference drawn from the discrimination made between the claimant and the Secretary of State in the matter of court fees to be paid on appeal from the award of the Land Acquisition Judge in section 8, Court Fees Act, was no longer warranted, as the Land Acquisition Amendment Act makes the Judge's decision a decree.

8. The Madras High Court and the Chief Court of Oudh took a different view. In a Stamp Reference, No. 9324 of 1923; before Schwabe, C. J., A I R 1924 Mad. 489 (2) it was held that when the appellant is' the Government the case is governed by Schedule 1, Article 1 of the Court Fees Act. The correctness of the decision of the Punjab Chief Court in Secretary of State v. Basawa Singh was very much doubted, since the proceedings before the Land Acquisition Court are not proceedings to set aside an award.

9. The same view was taken in Secretary of State v. P. Baij Nath (A I R 1932 Oudh 224), it being held that as the decision of the District Judge in that Case was a decree, ad valorem court‑fee was payable under Article 1, Schedule I, and not a fixed fee of Rs. 10 under Article 17 (iv) of Schedule II. The view expressed by the Punjab Chief Court in Basawa Singh's case was expressly dissented from.

10. Despite the difference between the Allahabad and Calcutta High Courts, on the one hand, and the Madras High Court and the Chief Court of Oudh, on the other, on the question of whether section 8 or Article 1 of Schedule I of the Court Fees Act governs such cases, it will be seen that the Punjab Chief Court stands alone in holding a fixed court‑fee to be payable. As already stated, I am, with the greatest respect, unable to agree with the view of the Punjab Chief Court, the argument that as Article 17 (iv) of Schedule II applies only to applications for setting aside an award it cannot be invoked in cases like the present, appearing to me to be irresistible. As, however, the authority in question is one of a Division Bench, I direct that the case be placed before his Lordship the Chief Justice with the recommenda tion that the question be considered by a larger Bench.

The facts of the case are given in the referring order and need not be repeated.

2. The main difficulty in considering the authority under reference, Secretary of State for India v. Basawa Singh is that the learned Judges did not give detailed reasons for their decision on the question of the court‑fee payable, merely remark ing: " The respondents will pay the appellant's costs in this Court, including the court‑fee of Rs. 10 which is adequate under Article 17 (iv) of the II Schedule to the Court Fees Act; section 8 of the Act being applicable only to appeals by persons claiming compensation". The legal position at that time, however, was that award of the kind now under discussion did not have the force of decrees, section 26 ( ) of the Land Acquisition Act (I of 1894), which granted them that status, only being added to the said Act in the year 1921. Schedule I of Article 1 of the Court Fees Act had, therefore, no application, being confined to appeals from decrees. It may be mentioned in this connection that although in Debi Din v. Secretary of State the learned Single Judge considered that no distinction can be drawn under Article 1 of Schedule I between appeals from decrees and appeals which are not from decrees, such a conclusion appears to me, with the greatest respect, to overlook the fact that Article II of Schedule 11 makes special provision for those cases in which the appeal is not from a decree or an order having the force of a decree. The enactment of the latter Article has the effect of limiting Article 1 of Schedule I to appeals from decrees or orders having the force of decrees. The position in which the learned Judges found themselves in Basawa Singh's case therefore was that Article 1 of Schedule I of the Court Fees Act could not be invoked, and as tiny were of the opinion that section 8. of the Act was limited to claimants and not applicable to appears by the Secretary of State, they had to fall back upon some other provision of the Act in deciding the court‑fee payable on an appeal falling within the latter category. The only Article that could be pressed into service for that purpose was Article 17 (iv) of the Second Schedule. The learned Judges would probably have been the first to concede that to apply Article 17 (iv) in this manner was to do a certain amount of violence to its language, since the proceedings under discussion are not "suits", nor is the relief sought by the appellant the setting aside of an award, but no alternative presented itself.

3. Mr. Ghulam Abbas Jafri attempted to argue that as, by section 26 (2) of the Land Acquisition Act, compensation awards are to be deemed to be decrees and the statements of the grounds of such awards "judgments " within the meaning of section 2, clause (2), and section 2, clause (9), respectively of the Code of Civil Procedure, the proceedings leading up to such awards must be classed as suits. In support of this proposition he cited Balram Singh v. Dudh Nath (A I R 1949 All. 100) in which it was held that when the word "suit" has not been defined in the General Clauses Act, it should not be given a restricted meaning, but the object of giving the expression "suit" so extended a meaning as to cover proceedings under section 12 of the U. P. Agriculturists' Relief Act was that the right of the parties to have their disputes settled by a tribunal of their own choice should not be taken away, whereas, as the law now stands, it is unnecessary to give such a wide meaning to the term in order to assess the court‑fee payable on the present appeal.

4. I have no hesitation in holding that Article 17 (iv) of the Second Schedule to the Court Fees Act is inapplicable to the present proceedings. Apart from the fact that the said proceed ings cannot be regarded as a "suit" within the ordinary meaning of that word, the relief sought is, as already pointed out, not the setting aside of an award. On this point the remarks of Bennet, J. In Debi Din v. Secretary of State may be usefully quoted:‑--

"The appellant before the High Court does not ask that the award of the tribunal should be set aside and that he should have no other relief. On the contrary what he asks for is that an award should be granted by this Court in appeal giving him an amount of compensation which is Rupees one lakh greater than the compensation awarded by the Court below. He therefore contemplates that as a result of the appeal there would be an award decreed by this Court. Such an appeal cannot be described as an appeal to set aside an award. The remedy of setting aside the decision of the lower Court would only be a part of the remedy asked and there is the further remedy of granting a larger award. The present appeal there fore will not come under Sch. 2, Art. 17 (iv)."

5. For the reasons ‑given above I am of the view that if the amendment to the Land Acquisition Act which gave awards such as the present the force of decrees had been in existence when the learned Judges decided Basawa Singh's case, they would, in view of their opinion that section 8 of the Court Fees Act was limited to appeals by claimants, have held Schedule I of Article 1 to be applicable, but, however, that may be, it is clear that under the law as it now stands the two alternatives are section 8 and Schedule I, Article 1. The only difficulty appears to me to be that whereas, in the case of appeals by claimants, section 8 of the Act, which is not itself a charging section, lays down the manner in which the court‑fee is to be computed, there is no corresponding provision prescribing the method of com putation of the court‑fee in the case of an appeal by the State, and if to cover the case of claimants, it was considered necessary to add a special section, it is unfortunate that no similar provision, exists in the case of State appeals. It would, however, be in the highest degree inequitable that whereas a claimant is compelled by section 8 to pay ad valorem court‑fee, the State should be entitled to file an appeal on payment of a fixed court‑fee of Rs. 10. and there is no doubt that though section 8 does not in terms apply to State appeals, its provisions should be invoked by analogy, and the court‑fee in appeals by the State fixed under Article 1 of Schedule I of the Court Fees Act.

A.H. Order accordingly.

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