SEBASTIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) BOTH these appeals have come up before this Court since the office of the High Court has noticed that the court-fees paid for these appeals are inadequate. The question arising for decision in both these cases is similar and that is why the cases have been heard together. They are appeals against the judgments of the Subordinate Judges Courts under the Land acquisition Act, the former appeal being from L. A. R. No. 776 of 1973 of the second Additional Subordinate Judge's Court, Ernakulam and the latter from the decision of the Subordinate Judge's Court, Mavelikara in L. A. R. 31 of 1974. The question that arose for decision in L. A. R. No. 776 of 1973, which question is now before this Court in the appeal is based on the claim by the appellant that he should have been paid compensation for the compulsory acquisition of land on which he was running a photographic studio for many years. He had been evicted from the business premises thereby resulting in loss of earnings to him. According to him he was a tenant of the premises for a quarter of a century and though he is now thrown out he was paid only a nominal sum as compensation by way of shifting charges. He claims that he has been denied the legitimate compensation due to him under the provisions of the kerala Land Acquisition Act. The learned judge did not accept his case for compensation, evidently since the learned judge did not find any provision under which such compensation could be awarded. He refers to lack of precedent which enabled him to award compensation. The decision of the Calcutta High court cited before the learned judge did not, according to the judge, apply to the facts of the case. The result was that the appellant substantially failed in his claim for compensation. We say, substantially, because what was awarded was only a sum of Rs. 75/- and that was by way of shifting charges. In the appeal, he has challenged the decision of the court below and for the purpose of jurisdiction, he has valued the revised claim Rs. 22,420/ -. But court-fee of only Rs. 10/-has been paid and the provision applicable has been shown as schedule II, Art 3 (iii) A (1) (a) of the Court Fees Act, 1960. It is S. 51 of the court Fees Act that is applicable and the Office noticed that ad valorem fee had to be paid on the amount to be claimed. That having not been paid, the matter has come up for hearing.

(2.) IN the other appeal, there is a dispute as to the extent of the property acquired. The court accepted the case of the extent as urged by the State and awarded compensation on that basis. The rate at which the land was valued is not in dispute. But the dispute concerns the finding of the Subordinate Judge that compensation will be awarded for 3. 65 acres of land only which was the extent acquired by the State while the claimant was given liberty to take possession of any land in excess of the red shaded plot marked in the plan produced by the State and do whatever he liked with regard to that land. There is also a further observation in the judgment that the claimant was given liberty to initiate appropriate proceedings against the respondent-State for getting the compensation for the excess land if any, taken by the respondent over and above the land shown in red colour in the plan attached to the decree. The appellant's case here is that the directions made in the judgment, which have been adverted to just now, are incompetent and virtually what the learned judge bad done was to abdicate his function to decide the extent of the land acquired and, therefore, what is in dispute is not actually the quantum of compensation but the impropriety of the impugned directions in the judgment.

(3.) IN the case before the Subordinate Judge's Court, ernakulam, the amount claimed by way of compensation for loss of earnings was refused for the reason that the court did not find any provision which enabled the appellant to succeed in his claim. May be the reason is good or may be it is bad. But the result is that the petitioner did not get any amount awarded on this count and if, according to him, he was entitled to any particular sum and for that purpose, he seeks relief from this Court, it cannot be said since he really seeks only an adjudication from this Court that he is entitled to claim compensation by way of loss of earnings, no court-fee need be paid. S. 51, according to us, provides that if he makes a claim and that has not been allowed in part or in full, he should pay the court-fee on that part of the monetary claim that is pursued in the appeal. That is what is expressed by the words in S. 51. IN the case before the Subordinate's Court, Mavelikkara, though the petitioner claimed compensation on the basis that the extent acquired was larger, the court chose to award compensation for a lesser extent. Whether the direction to take possession of 'the rest of the area in independent proceedings was right may arise for decision in the appeal. But the relief that the petitioner could obtain in the appeal is based on his success in claiming compensation for the entire extent. If S. 51 is applied, the appellant is to pay court-fee on the difference between the amount awarded as compensation and the amount, which, according to him, is due as compensation if he succeeds in the appeal.