Full Judgment Text
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PETITIONER:
C.G. GHANSHAMDAS & ORS.
Vs.
RESPONDENT:
COLLECTOR OF MADRAS
DATE OF JUDGMENT12/09/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
KHALID, V. (J)
CITATION:
1987 AIR 180 1986 SCR (3) 754
1986 SCC (4) 305 JT 1986 432
1986 SCALE (2)414
ACT:
Tamil Nadu Court Fees & Suits Valuation Act, 1955, s.51
and Article 3(iii) (A) (1) (a) of Schedule 11-Memorandum of
Appeal u/s. 11 of Requisitioning Act, 1952-Court fee-
Computation and payment of.
Requisition & Acquisition of Immovable Property Act,
1952, ss. 3, 5, 7-Requisition and acquisition of Property-
Distinction between.
Words & Phrases - ’order’ - Meaning of.
HEADNOTE:
The property of the appellants continued to remain
under requisition by virtue of the several amendments made
to the Requisitioning and Acquisition of Immovable Property
Act 1952 and the compensation payable in respect of it was
required to be revised for a period of 5 years from 7.3.75
to 6.3.1980. As there was no agreement between the parties
on the question of compensation payable for the said period,
the said question was referred to an arbitrator under s. 8
of the Requisitioning Act to determine the compensation
payable. The arbitrator by his award fixed the compensation
payable for the property at Rs.21,000 per month as against
the claim of Rs.77,270 per month made by the appellants.
Aggrieved by the decision of the arbitrator the
appellants filed an appeal before the High Court of Madras
under s.11 of the Requisitioning Act. The Registry of the
High Court raised an objection regarding the amount of court
fee paid on the memorandum of appeal. The matter was placed
before the Division Bench of the High Court and it held that
the appellants were liable to pay court fee on the
memorandum of appeal under s. 51 of the Tamil Nadu Court
Fees and Suits Valuation Act 1955 (for short, the Act) ad
valorem on the amount of compensation which was in dispute
in the appeal.
In appeal to this Court, the appellants contended that
the amount
755
of court fee payable on a memorandum of appeal filed under
s. 11 of the Requisitioning Act should not be computed in
accordance with s. 51 of the Act as a fixed court fee was
payable under the residuary provision, that is, Art. 3 (iii)
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(A) (1) (a) of Schedule II of the Act. In support of this
contention the appellants raised two points; (i) that since
there is no transfer of title to the property which is
requisitioned from its owner to the Government, the said
transaction is not an acquisition and hence those provisions
of the Requisitioning Act under which the property is
requisitioned do not constitute a law providing for
acquisition of property and therefore, s. 51 of the Act
would not be applicable because it relates only to appeals
filed against an order relating to compensation under any
Act for the time being in force for the acquisition of land;
and (ii) that the award made by the arbitrator under s. 8 of
the Requisitioning Act not being an ’order’ as defined in
the Code of Civil Procedure 1908, the appellants cannot be
called upon to pay court fee in accordance with s. 51 of the
Act since s. 51 refers to court fee payable on a memorandum
of appeal against an ’order’.
Dismissing the appeal,
^
HELD: 1. The appeal before the High Court filed under
s. 11 of the Requisitioning Act falls squarely under s. 51
of the Act. Therefore, the court fee has to be paid on ad
valorem basis as provided in Art. 1 of Schedule I to the
Act. It follows that the residuary Article, that is, Art.
3(iii) (A) (1) (a) of Schedule II to the Act is not
attracted. [769E-F]
2(i) Section 3 of the Act states that in the Act
’unless the context otherwise requires’ the words and
expressions defined in that section shall carry the meaning
given to them in various clauses in that section. It is
relevant to note that in section 51 of the Act which arises
for consideration the word ’order’ does not appear in
isolation. The section states that the fee payable under the
Act on a memorandum of appeal against an order relating to
compensation in any Act for the time being in force for the
acquisition of property for public purposes shall be
computed on the difference between the amount awarded and
the amount claimed by the appellants. The ’order’ referred
to in s. Sl of the Act need not be an ’order’ of a civil
court as defined in s. 2(14) of the Code of Civil Procedure
but should be an ’order’ relating to compensation under any
Act for the time being in force for the acquisition of
property for public purposes. [768G-H; 769A-C]
2(ii) There is no doubt that the award passed by the
Arbitrator
756
under the Requisitioning Act is a formal expression of a
decision made by a competent authority which is binding on
the parties and it relates to compensation payable under an
Act for the time being in force for the acquisition of
property for the public purposes. Therefore, even though the
expression ’order’ simpliciter has to be understood in the
sense in which that expression is defined in s. 2 (14) of
the Code of Civil Procedure, the word ’order’ found in s. 51
of the Act bas to be read differently having regard to the
words which qualify that expression in that section, namely,
’relating to compensation under any Act for the time being
in force for the acquisition of properties’. The said order
need not be an order of a civil court only. It can be of any
statutory authority. But it must determine compensation for
a property acquired under a law of acquisition of property
for public purpose. In the instant case, the award made
under s. 8 of the Requisitioning Act satisfies these tests.
[769C-E]
Sahadu Gangaram Bhagade v. Spl. Deputy Collector,
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Ahmedanagar & Anr., [1971] 1 S.C.R. 146, relied upon.
Y. Venkanna Choudhary v. Government of India, by
Military Estates officer, Madras & Anr., AIR 1976 Madras 41,
Laxshminarayana Rao & Ors. v. Revenue Divisional officer,
Kakinada & Ors., A.I.R. 1968 Andhra Pradesh 348, M.
Ramachandran & Ors. v. State of Madras represented by the
Collector, Coimbatore, 87 Law Weekly Madras 791,
Balakrishnan Nambiyar & Ors. v. Kanakathidathil Madhavan &
Ors., A.I.R. 1979 Kerala 40 & Ghouse Saheb v. Sharifa Bi &
Ors., A.l.R. 1977 Karnataka 181, approved.
Hirji Virji Jangbari v. Government of Bombay, A.I.R.
1945, Bombay 348, Kanwar Jagat Bahadur Singh v. The Punjab
State, Crown’s case, A.l.R. 1957 Punjab 32 Crown v.
Chandrabhanlal and Ors., AIR. 1957 Nagpur 8 and Mangal Sen
v. Union of Indian A.l.R., 1970 Delhi 44, disapproved.
3(i) The expression ’acquisition’ is not defined in the
Act. Sections 3 to 6 of the Requisitioning Act deal with the
powers of the Government in respect of requisitioning of
property and section 7 of that Act confers power on the
Government to acquire a property which has been
requisitioned. Whenever a property is requisitioned by the
competent authority it is entitled to call upon the owner or
any other person who may be in possession of the property to
surrender possession thereof to the Government. Section 5 of
the Requisitioning Act provides that all properties
requisitioned under section 3 shall be used
757
for such purposes as may be mentioned in the notice of
requisition. Such requisitioned property may be released
from requisitioning under section 6. The title to property
requisitioned under the Requisition Act continues to rest
with the owner, the Government being entitled to only the
possession of such property. [761 B-E]
3(ii) Not only is a right to possession a right of
property, but where the subject of proprietary rights is a
tangible thing, it is the most characteristic and essential
of those rights. Possession, it is said, is nine points in
law. An owner without possession has only a mere shell while
the person in possession enjoys the property in many ways.
In this situation, it is difficult to say that there cannot
be deprivation of property without deprivation of title
also. Deprivation of possession for an indefinite period is
acquisition of property during that period though the title
may continue to rest with the owner. That is why the
requisitioning law also had to satisfy Art. 19(1) (f) and
Art. 31 of the Constitution when they were in the
Constitution. [764B-D]
3(iii) The Supreme Court has treated both
requisitioning of property and acquisition of property as
meaning the acquisition of property in the large sense and
there is no reason to depart from the views expressed by the
two Constitution Benches of this Court in the State of West
Bengal v. Subodh Gopal Bose and Ors,. 1954 S.C.R. 587 and
Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning &
Weaving Co. Ltd. and Ors., [1954] S.C.R. 674.
The Minister of State for the Army v. Dalziel, 68
C.L.R. 261, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3040 of
1986
From the Judgment and order dated 24.6.1985 of the
Madras High Court in S.R.No. 106081 of 1984.
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Soli J. Sorabjee, Joel Peres and D.N. Mishra for the
Appellants.
Abdul Khader, T.V. Ratnam and A.V. Rangam for the Res-
pondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The short question which arises for
758
consideration in this appeal is whether under the Tamil Nadu
Court-Fees and Suits Valuation Act, 1955 (hereinafter
referred to as ’the Act’) the court fee payable on a
memorandum of appeal filed under section 11 of the
Requisitioning and Acquisition of Immovable Property Act,
1952 (Act 30 of 1952) (hereinafter referred to as ’the
Requisitioning Act’) should be computed in accordance with
section 51 of the Act or a fixed court fee is payable under
the residuary provision that is Article 3 (iii) (A) (1) (a)
of Schedule II to the Act.
The appellants claim to be the co-owners of the land
and building bearing Door No. 745 E.V.R. Periyar High Road
(Poonamallee High Road), Kilpauk, Madras. The land along
with the building standing thereon was originally
requisitioned under the provisions of the Requisitioning Act
for the purpose of accommodating the NCC Headquarters
through the Collector of Madras. The above property was
taken possession of on 9.2.1963. In order to fix the
compensation for the period of five years beginning from
9.6. 1963 to 20.2.1967, an Arbitrator was appointed. The
Arbitrator by his award dated 5.1.1970 fixed the
compensation at Rs.6000 per month and the compensation was
being paid accordingly.
At this stage it is necessary to refer to the history
of the Requisitioning Act. The power to requisition and to
acquire immovable property for a public purpose was first
provided in the Defence of India Act, 1939 which expired on
the 30th September, 1946. It was, however, found necessary
to retain some of the properties for a longer period in the
occupation of the Government. Therefore, it was provided in
the Requisitioned Land (Continuance of Powers) Act, 1947
that any property which had been requisitioned under the
Defence of India Act, 1939 would continue to remain under
requisition. Subsequently, the Requisitioning and
Acquisition of Immovable Property Act, 1952 that is the
Requisitioning Act with which we are concerned in this case
was passed in the year 1952 to confer powers on the
Government in this regard. The Act was initially to operate
for a period of six years but its duration was extended from
time to time. The Requisitioning and Acquisition of
Immovable Property (Amendment) Act, 1970 made the
Requisitioning Act a permanent measure but restricted the
period for which a requisitioned property could be retained
under requisition to three years from the commencement of
the above said Amendment Act in the case of properties
requisitioned before such commencement and in the case of
any other property requisitioned after such commencement to
three years from the date on which possession of such
759
property was surrendered or delivered to or taken by the
competent authority under section 4 of the Requisitioning
Act. Thus properties requisitioned before the commencement
of the said Amendment Act could be retained under
requisition up to the 10th March 1973. A large number of
properties requisitioned under the Requisitioning Act could
not be released by the said date and the maximum period for
which properties could be kept under continued requisition
was extended for a further period of two years by the
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Requisitioning and Acquisition immovable Property
(Amendment) Act, 1973. A number of properties requisitioned
under the Requisitioning Act were still in possession of the
Ministry of Defence and also some other Ministries. Although
the Government was expeditiously implementing the policy of
acquiring or de-requisitioning the requisitioned properties,
a large number of them were expected to be needed by the
Government even after the 10th March, 1975 for public
purposes. On many of the properties valuable constructions
of a permanent nature connected with the national defence or
the conduct of military operations or other important public
purposes had been put up. Due to financial stringency, it
was not possible either to acquire the properties or take up
large scale construction programmes in the immediate future
to enable the Government to release the requisitioned
properties. It was, therefore, found necessary to keep the
properties under the continued requisition for a longer
period. Parliament, therefore, passed the Requisitioning and
Acquisition of Immovable Property (Amendment) Act, 1975 (Act
11 of 1975) by which it amended the Requisitioning Act so as
to extend by five years the existing maximum period for
which properties could be retained under requisition and to
provide for quinquennial revision of the recurring part of
compensation .
The property in question by virtue of the several
amendments made to the Requisitioning Act continued to
remain under requisition and the compensation payable in
respect of it was required to be revised as provided by the
Requisitioning Act as amended by Act II of 1975 for a period
of five years from 7.3.1975 to 6.3.1980. As there was no
agreement between the parties on the question of
compensation payable for the said period the said question
was referred to the Principal Judge, City Civil Court,
Madras who had been appointed as the arbitrator under
section 8 of the Requisitioning Act to determine the
compensation payable in respect of the property in question
for the said period. The learned Arbitrator by his award
dated August 31, 1984 fixed the compensation payable for the
property at Rs.21,000 per
760
month as against the claim of Rs.77,270 per month made by
the appellants.
Aggrieved by the decision of the Arbitrator the
appellants filed an appeal before the High Court of Madras
under section 11 of the Requisitioning Act. On an objection
raised by the Registry of the High Court regarding the
amount of the court fee paid on the memorandum of appeal the
matter was placed before a Division Bench of the High Court
of Madras for its decision. After hearing the learned
counsel for the appellants the High Court following its
earlier decision in Y. Venkanna Choudhary v. Government of
India, by Military Estates officer, Madras & Anr., AIR 1976
Madras 41 held that the appellants were liable to pay court
fee on the memorandum of appeal under section 51 of the Act
ad valorem on the amount of compensation which was in
dispute in the appeal. The appellants have filed this appeal
by special leave against the said order of the High Court.
Section 51 of the Act which arises for consideration in
this case reads thus:
"51. The 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 property for public
purposes shall be computed on the difference
between the amount awarded and the amount claimed
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by the appellant. "
The corresponding provision in the Court Fees Act, 1870
(Central Act VII of 1870) which was in force prior to the
Act coming into force in Tamil Nadu is section 8 of that
Act. It reads thus:
"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."
Two principal contentions are urged by the appellants
in support of this appeal. The first contention is that
since there is no transfer of title to the property which is
requisitioned from its owner to the Go
761
vernment, the said transaction is not an acquisition and
hence those provisions of the Requisitioning Act under which
the property is requisitioned do not constitute a law
providing for acquisition of property. On the above basis it
is urged that section 51 of the Act would not be applicable
because it relates only to appeals filed against an order
relating to compensation under any Act for the time being in
force for the acquisition of land.
The expression ’acquisition’ is not defined in the Act.
We will have to ascertain from the scheme of the
Requisitioning Act whether an acquisition of property takes
place when it is requisitioned under the relevant provisions
of the Requisitioning Act. Sections 3 to 6 of the
Requisitioning Act deal with the powers of the Government in
respect of requisitioning of property and section 7 of that
Act confers power on the Government to acquire a property
which has been requisitioned. Whenever a property is
requisitioned by the competent authority it is entitled to
call upon the owner or any other person who may be in
possession of the property to surrender possession thereof
to the Government. Section S of the Requisitioning Act
provides that all properties requisitioned under section 3
shall be used for such purposes as may be mentioned in the
notice of requisition. Such requisitioned property may be
released from requisitioning under section 6. The title to
the property continues to rest with the owner, the
Government being entitled to only the possession of such
property.
In the State of West Bengal v. Subodh Gopal Bose and
Ors., [1954] S.C.R. 587, Patanjali Sastri CJ., has explained
the meaning of the word ’acquisition’ at page 610 thus:
"The word "acquisition" is not a term of art, and
it ordinarily means coming into possession of,
obtaining, gaining or getting as one’s own. It is
in this general sense that the word has been used
in articles 9, 11 and 19(1) (f) and not as
implying any transfer or vesting of title ........
................... To say that acquisition
implies the transfer and vesting of title in the
Government is to overlook the real nature of the
power of the State as a sovereign acting through
its legislative and executive organs to
appropriate the property of a subject without his
consent. When the State chooses to exercise such
power, it creates title in itself rather than
acquire it from the owner the nature and extent of
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the title thus created depending on the purpose
and
762
duration of the use to which the property
appropriated is intended to be put as disclosed in
the law authorising its acquisition. No formula of
vesting is necessary."
In Dwarkadas Shrinivas of Bombay v. The Sholapur
Spinning & Weaving Co. Ltd. and Ors., [1954] S.C.R. 674
Mahajan, J. has observed at page 704 thus:
"In my judgment, the true concept of the
expression "acquisition" in our Constitution as
well as in the Government of India Act is the one
enunciated by Rich J. and the majority of the
court in Dalziel’s case. With great respect I am
unable to accept the narrow view that
"acquisition" necessarily means acquisition of
title in whole or part of the property. It has
been rightly said that a close and literal
construction of constitutional provisions made for
the security of person and property deprives them
of half their efficacy and ends in a gradual
depreciation of the right as if the right
consisted more in sound than in substance. In
other words, such provisions can not be construed
merely by taking a dictionary in hand. The word
"acquisition" has quite a wide concept meaning the
procuring of property or the taking of it
permanently or temporarily. It does not
necessarily imply the acquisition of legal title
by the State in the property taken possession of."
In both the above decisions the learned Judges drew
support for their views from the decision of the High Court
of Australia in The Minister of State for the Army v.
Dalziel, 68 C.L.R. 261. In that case the High Court of
Australia had to consider the scope of the legislative power
with respect to acquisition of property conferred on the
Commonwealth by section 51 (xxxi) of the Commonwealth of
Australia Constitution Act of 1900 including the power to
take possession for indefinite period. In the said case the
placitum of the Australian Constitution which came up for
consideration read like this:
"The Parliament shall, subject to this
Constitution, have power to make laws for the
peace, order, and good government of the
Commonwealth with respect to-the acquisition of
property on just terms from any State or person
for any purpose in respect of which the Parliament
has power to make law."
Rich, J. who was one of the Judges constituting the
majority in that Bench observed.
763
"The language used is perfectly general. It says
the acquisition of property. It is not restricted
to acquisition by particular methods or of
particular types of interests, or to particular
types of property. It extends to any acquisition
of any interest in any property .............. But
there is nothing in the placitum to suggest that
the legislature was intended to be at liberty to
free itself from the restrictive provisions of the
placitum by taking care to seize something short
of the whole bundle owned by the person whom it
was expropriating ................................
.............. It would, in my opinion, be wholly
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inconsistent with the language of the placitum to
hold that, whilst preventing the legislature from
authorising the acquisition of citizen’s full
title except upon just terms, it leaves it open to
the legislature to seize possession and enjoy the
full fruits of possession, indefinitely, on any
terms it chooses, or upon no terms at all ...... I
am not impressed by the argument sought to be
based upon the fact that in the expropriation
legislation of fully sovereign legislatures a
distinction is sometimes drawn between the
permanent appropriation of property and the
temporary assumption of the possession of adjacent
property for use whilst works are being erected on
the property which has been permanently
appropriated. It was pointed out that in such
legislation the two types of appropriation are
differently dealt with, and that different
language has been used to describe them by learned
judges who have had occasion to refer to them.
This is no doubt so. ...................... But,
with all respect. I fail to see how the practice
of such legislatures or the language used by
judges in referring to their legislation, throws
any light upon the construction or operation of
placitum xxxi, occurring, as it does, in a
Constitution which confers powers which are both
limited and conditional. "
The majority in that decision ultimately took the view
that the taking under regulation 54 of the National Security
(General) Regulations by the Commonwealth for an indefinite
period of the exclusive possession of property constituted
an acquisition of property within the meaning of section
51(xxxi) of the Australian Constitution.
"Possession in the Common Law". by Pollock and Wright
(1888)
764
says: ’So feeble and precarious was property without
possession or rather without possessory remedies, in the
eyes of medieval lawyers, that possession largely usurped
not only the substance but the name of the property ........
Possession confers more than personal right to be protected
against wrongdoers: it confers qualified right to possess, a
right in the nature of property which is valid against
everyone who cannot show a prior or better title............
......... Possession is a root of title.’ Not only is a
right to possession a right of property, but where the
object of proprietary rights is a tangible thing, it is the
most characteristic and essential of those rights.
Possession, it is said, is nine points in law. An owner
without possession has only a mere shell while the person in
possession enjoys the property in many ways. In this
situation, it is difficult to say that there cannot be
deprivation of property without deprivation of title also.
Deprivation of possession for an indefinite period is
acquisition of property during that period though the title
may continue to rest with the owner. That is why the
requisitioning law also had to satisfy Article 19(1) (f) and
Article 31 of the Constitution when they were in the
Constitution.
It is no doubt true that in India before the
Constitution there were two modes of depriving a person of
immovable property in exercise of the right of eminent
domain of the State, namely, requisitioning of property and
acquisition of property and even after the Constitution came
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into force the same pattern of laws is continued to be
maintained but this Court has treated both requisitioning of
property and acquisition of property as meaning the
acquisition of property in the larger sense and there is no
reason to depart from the views expressed by the two
Constitution Benches of this Court referred to above. We do
not, therefore, find any substance in the argument that the
requisitioning of property under the Requisitioning Act does
not amount to acquisition and the provisions contained in
the said Act providing for the requisitioning of property do
not constitute a law relating to acquisition of property
referred to in section 51 of the Act. The first contention,
therefore, fails.
The second contention urged on behalf of the appellants
is that the award made by the Arbitrator under section 8 of
the Requisitioning Act not being an order as defined in the
Code of Civil Procedure, 1908 the appellants cannot be
called upon to pay the court fee in accordance with section
51 of the Act since section 51 of the Act refers to court
fee payable on a memorandum of appeal against an ’order’.
Elaborating the above contention the learned counsel for the
appe-
765
llants submitted that the expression ’order’ in section 51
of the Act can only mean an order as defined in section
2(14) of the Code of Civil Procedure in view of section
3(iv) of the Act which provides that expressions used and
not defined in the Act or in the Tamil Nadu General Clauses
Act, 1891 (Tamil Nadu Act I of 1891), but defined in the
Code of Civil Procedure, 1908 (Central Act V of 1908), shall
have the meanings respectively assigned to them in the said
Code, and the expression ’order’ is defined in section 2(14)
of the Code as the formal expression of any decision of a
Civil Court which is not a decree. It is argued that since
the Arbitrator appointed under section 8 of the
Requisitioning Act is not a Civil Court, the award passed by
him cannot be termed as an ’order’ bringing it within the
mischief of section 51 of the Act. Reliance is placed by the
appellants in support of the above contention on the
decision of the High Court of Bombay in Hirji Virji Jangbari
v. Government of Bombay A.l.R. 1945 Bombay 348 which was a
decision rendered on the basis of section 8 of the Court
Fees Act, 1870 which was in force in Bombay at that time and
which was more or less couched in the same language as
section 51 of the Act. We have already quoted above section
8 of the Court Fees Act, 1870. The Act corresponding to the
Requisitioning Act, which was under consideration by the
High Court of Bombay in that decision was the Defence of
India Act, 1939. In that case under rule 75A of the Defence
of India Rules, 1939 framed under the Defence of India Act,
1939 a plot of land belonging to the claimant therein was
acquired by the Government for and on behalf of the Defence
authorities and as no agreement could be arrived between the
claimant and the Government with regard to the amount of
compensation payable, the Government of Bombay appointed the
Chief Judge of the Court of Small Causes as an arbitrator
under section 19(1) (b) of Defence of India Act, 1939
corresponding to section 8 of the Requisitioning Act, to
determine the amount of compensation payable to the
claimant. The artibtrator fixed the amount payable to him at
Rs.45,855. The claimant being dissatisfied with that amount
filed an appeal in which he claimed a further sum of
Rs.47,896/8 in addition to the amount awarded to him by the
arbitrator. The question that arose in that case was whether
the appellant was liable to pay court fee on the memorandum
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of appeal ad valorem, as required by section 8 of the Court
Fees Act, 1870 or whether he was liable to pay a fixed fee
under Schedule II Article 11 of the Court Fees Act, 1870.
The learned Judge who decided the said case held that the
order of the arbitrator in that case being not a decree nor
an order having the force of a decree and there being no
provision in section 19 of the Defence of India Act and the
Rules made thereunder by which the awards made under that
Act were deemed to be the
766
decrees, the award could not be treated as an order within
the meaning of section 8 of the Court Fees Act. The learned
Judge, therefore, came to the conclusion that a fixed court
fee was payable under the residuary Article 11 of Schedule
II to the Court Fees Act, 1870. It was brought to our notice
that this decision had been followed in Crown v. Chandrabhan
Lal and Ors., A.I.R. 1957 Nagpur 8. We find that earlier to
the above decision a contrary view had been taken by the
Calcutta High Court In re Ananda Lal Chakrabutty & Ors.,
A.I.R. 1932 Calcutta 346. In that case Rankin CJ. who
decided it observed thus:
"Section 8, while not itself imposing any fee upon
any one, provides 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 pay
able 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 a
charge which is an ad valorem charge and is not a
fixed charge;
.......... The provisions of s. 8, involving
as they do that fee in the class of cases dealt
with is an ad valorem fee, are themselves
sufficient to exclude any question of Article 11
of Schedule II 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 ...... ..."
In Satya Charan Sur v. State of West Bengal, A.I.R.
1959 Calcutta 609 the High Court of Calcutta while following
the decision in Ananda Lal Chakrabutty’s case (supra)
expressly dissented from the view expressed in Hirji Virji
Jangbari’s case (supra), After the Bombay Court Fees Act,
1959 came into force a similar question arose for
consideration in C.B.G. Trust v. Union of India, [1970]
Bombay Law Reporter, 4()7, regarding the proper court fee
payable on an appeal filed against an award made under the
Requisitioning Act. In the Bombay Court Fees Act, 1959
section 7(1) provided that the amount of fee payable
767
under that 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 should
be computed according to the difference between the amount
awarded and the amount claimed by the appellant. The
language of that section was similar to the language of
section 51 of the Act and of section 8 of the Court Fees
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Act, 1870. A Division Bench of the High Court of Bombay,
which heard the said case held that the Court fee payable on
the memorandum of appeal preferred against award made under
section 8 of the Requisitioning Act was as prescribed by
Article 3 of Schedule 1 read with section 7(1) of the Bombay
Court Fees Act, 1959. They disapproved the decision of the
Bombay High Court in Hirji Virji Jangbari’s case (supra) and
followed the decision of the Calcutta High Court in Ananda
Lal Chakrabutty’s case (supra). An identical question came
before this Court for consideration in Sahadu Gangaram
Bhagade v. Spl. Deputy Collector, Ahmedanagar & Anr., [1971]
1 S.C.R. 146. In that case this Court approved the view
expressed by the Calcutta High Court in Ananda Lal
Chakrabutty’s case (supra) and in C. B. G. Trust case
(supra) and held that the contention that the award made by
the Arbitrator had no effect and, therefore, it could not be
considered as an order, was not acceptable. The Court
proceeded to hold that though the award was not an order as
defined in the Civil Procedure Code, 1908 having not been
made by the Civil Court but since the expression ’order’ had
not been defined in that Act, the award of the Arbitrator
was undoubtedly a formal expression of a E decision made by
a competent authority which was binding on the parties to
the proceedings in which it was made. The learned counsel
for the appellants tried to distinguish this decision from
the present case on the ground that while the expression
’order’ had not been defined in the Bombay Court Fees Act,
1959 which arose for consideration in the said decision, in
the present case it had been defined as stated earlier by
stating in section 3(iv) of the Act that the expression used
and not defined in the Act, but defined in the Code of Civil
Procedure should have the meaning respectively assigned to
them in the said Code, and in view of the above distinction
the decision in Sahadu Gangaram Bhagade’s case (supra) would
not govern the present case. We do not find much substance
in the above contention. On carefully going through the
decision of this Court in Sahadu Gangaram Bhagade’s case
(supra) we find that the decision did not really turn upon
the presence or the absence of the definition of the word
’order’ in the Bombay Court Fees Act, 1959 although there is
a reference to this aspect of the matter in the course of
the decision. The relevant
768
part of the decision in Sahadu Gangaram Bhagade’s case
(supra) at page 150 reads like thus:
"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-
section (2) of s. 26 of the Land Acquisition Act,
1894 where under every award made by the Land
Acquisition officer is to be deemed to be a decree
of court. Therefore, the question whether the
award made under s. 8 of the Act is executable or
not is a matter that requires further considera-
tion. For the present, we shall proceed on the
basis that it, is not executable. But section 9 of
the Act requires the competent authority to pay
the compensation 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 not 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
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made by a civil court. But the expression ’order’
is not defined in the Act. The award of the
arbitrator is undoubtedly a formal expression of a
decision made by a competent authority. Further it
is a decision binding on the parties to the
proceedings in which it is 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.
"
(emphasis added)
The portion of the judgment of this Court which has
been under lined clearly brings out the effect of an award.
This Court has held that the award of the arbitrator is
undoubtedly a formal expression of a decision made by a
competent authority. We are also of the view that much
reliance cannot be placed on the definition clause found in
section 3(iv) of the Act since the definitions given in that
section have to be read subject to the context in which the
expressions defined therein appear in the Act. Section 3 of
the Act states that in the Act ’unless the context otherwise
requires’ the words and expressions defined in that section
shall carry the meaning given to them in various clauses in
that section. It is relevant to note that in section 51 of
the Act which arises for consideration before us the word
’order’ does not appear in isola-
769
tion. The section states that the fee payable under the Act
on a memorandum of appeal against an order relating to
compensation in any Act for the time being in force for the
acquisition of property for public purposes shall be
computed on the difference between the amount awarded and
the amount claimed by the appellants. The ’order’ referred
to in section 51 of the Act need not therefore be an ’order’
of a civil court as defined in section 2(14) of the Code of
Civil Procedure but should be an ’order’ relating to
compensation under any Act for the time being in force for
the acquisition of property for public purposes. There is no
doubt that the award passed by the Arbitrator under the
Requisitioning Act is a formal expression of a decision made
by a competent authority which is binding on the parties and
it relates to compensation payable under an Act for the time
being in force for the acquisition of property for the
public purposes. Hence we are of the view that even though
the expression ’order’ simpliciter has to be understood in
the sense in which that expression is defined in section
2(14) of the Code of Civil Procedure, the wold ’order found
in section 51 of the Act has to be read differently having
regard to the word which qualify that expression in that
section, namely, relating to compensation under any Act for
the time being in force for the acquisition of properties’.
The said order need not be an order of a civil court only.
It can be of any statutory authority. But it must determine
compensation for a property acquired under a law of
acquisition of property for public purpose. The award made
under section 8 of the Requisitioning Act satisfies these
tests. We do not, therefore, find any substance in this
contention too. Since according to us the appeal before the
High Court filed under section 11 of the Requisitioning Act
falls squarely under section 51 of the Act, court fee has to
be paid on ad valorem basis as provided in Article 1 of
Schedule 1 to the Act. It follows that the residuary Article
i.e. Article 3(iii)(A)(1)(a) of Schedule 11 to the Act is
not attracted. The High Court was right in following its
earlier decision in Y. Venkanna Choudhary’s case (supra) and
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directing the appellants to pay court fee an ad valorem
basis under section 5 1 of the Act.
We may add that the decision in Srunguri Lakshmi
Narayana Rao & Ors. v. Revenue Divisional officer, Kakinada
& Ors., A.I.R. 1968 Andhra Pradesh, 348 M. Ramachandran &
Ors. v. State of Madras represented by the Collector,
Coimbatore, 87 Law Weekly Madras 791 Satya Charan Sur’s case
(supra), Balakrishnan Nambiyar & Ors., v. Kanakathidathil
Madhavan & Ors., A.I.R. 1979 Kerala 40 and Ghouse Saheb v.
Sharifa Bi & Ors., A.I.R. 1977 Karnataka 181 have taken the
came view as we have taken.
770
The decisions in Hirji Virji Jangbari’s case (supra),
Kanwar Jagat Bahadur Singh v. The Punjab State, A.I.R. 1957
Punjab 32. Crown’s case (supra) and Mangal Sen v. Union of
India, A.I.R. 1970 Delhi 44 are not approved by us.
We, therefore, dismiss the appeal. There shall,
however, be no order as to costs.
The appellants are granted three months’ time to pay
the deficit court fee on the memorandum of appeal.
M.L.A. Appeal dismissed.
771