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Civil Appeal No. 35 of 1961, decided on 18th October 1962.

S. 54 and Court Fees Act (VII of 1870), Ss. 8 read with 7 (iv)(c) and Sch. II, Art. 17‑Pro vision of S. 8, Court Fees Act, 1870 overrides general provisions of Sch. II, Art. 17 of the Act‑Award of compensation under Land Acquisition Act, 1894‑Court‑fee payable on memorandum of appeal to be ad valorem according to difference between amount awarded and that claimed by appellant.

S. Z. Choudhary for Appellant.

Raja Larasap Khan, Government Advocate (Mangla Dam Affairs) for Respondent.

‑This is an appeal from the judgment and decree of the District Judge, Mangla Dam Affairs, dated 6‑9‑61, dismissing the reference application of the appellants which was sent to the District Judge by the Collector I vide his award No. 9/60 acquiring the Khari Khas estate.

The appellants, who are ferry‑men at Mangla Pattan, raised the objection to the award that Mangla Pattan falls in Khari Khas estate and acquisition of Pattan and its adjacent areas have deprived them of their earnings. The Collector did not himself decide whether the acquisition proceedings had injuriously affected the earnings of the appellants but sent this for the decision of the District Judge, who after recording the evidence of the parties found that the Pattan was not owned by the appellants and nor did the construction of a bridge affect their work as ferry‑men and that the mere plying of the ferry did not give the appellants any right to compensation and that section 23 clause (4) of the Land Acquisition Act had no applica tion in this case.

The appellants filed this appeal on 21‑10‑61, but in the memorandum of appeal the value for purposes of court‑fee was not shown. Raja Larasap Khan, Government Advocate (Mangla Dam Affairs) appearing on the first hearing dated 24‑1‑62, pointed out that the court‑fee on the memorandum of appeal was deficient but the learned counsel for the appellants maintained that proper court‑fee had been paid and we heard the arguments of the learned counsel on the point yesterday. The stand of the learned counsel for the appellant is that in so far as, in fact, the prayer of the appellant amounts to a prayer for a declaration that they have a certain easement over the land acquired, with a consequential relief, therefore, the court‑fee is payable under section 7 (4)(c) of the court‑fee Act ; and that on that basis he had paid a fixed court‑fee of Rs. 10 under Article 17 of Schedule II of the Act. On the other hand the counsel for the Government urged that section 8 of the Court‑fees, Act was the proper section governing the case. Section 8 lays down :‑

"The amount of fee payable under this Act on a memoran dum 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."

We have no doubt that this special provision relating to the award of compensation under the Land Acquisition Act over rides the general provisions of Schedule II, Article 17 and ad valorem court‑fee is to be paid on the memorandum of appeal according to the difference between the amount awarded and the amount claimed by the appellants. So far as the amount awarded is concerned it is known that it is zero but the amount claimed has not been set out in the memorandum of appeal and unless it is intended to be Rs. 110 on which the court‑fee of Rs. 10 has been paid, the appeal is clearly under‑valued.

The appeal has been hanging fire for quite a long time and the notice of the preliminary objection had been given to the appellant. However, subject to the objections of the respondent as to limitation we are inclined to grant the appellants an opportunity to assess the compensation claimed by him and to pay up the court‑fee on or before the 13th November 1962, when we are expected to be on tour at Mirpur, next.

K. B. A. Order accordingly.

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