AMBADAS RAMCHANDRA PACHPOR Vs. STATEOF MAHARASHTRA

JUDGEMENT

(1.) This revision application is directed against the order dated August 10, 1979, passed by Taxing Officer holding that the appellant's claim would be governed by section 7(1) of the Bombay Court Fees Act, 1959, and docs not come within the purview of item 13(c) of Schedule II of the Bombay Court Fees Act and directing him to pay Rs. 1,850 as deficit court fee.

(2.) A piece of land owned by the applicant admeasuring 2 acres 23 gunthas out of S. No. 681/1 of Akot was acquired by the State Government under the Land Acquisition Act, and the Land Acquisition Officer, Akot, awarded Rs. 51.500 as compensation. The applicant made a claim for Rs. 1,10,500 and requested the Collector to make a reference under Section 18 of the Land Acquisition Act in respect of the claim for Rs. 59,000/-, which was rejected. The Civil Judge, Senior Division, Akola, held that the applicant was entitled to an additional amount of only Rs. 30,013. The applicant whereafter filed an appeal in this court for recovery of Rs. 28,987 and paid Rs. 5 as Court fees as per Item 13(c) of Schedule II of the Bombay Court Fees Act, 1959. The Taxing Officer held that the applicant was liable to pay Rs. 1,850 as deficit court fee as the claim could not come under Item 13(c) of Schedule II of that Act. This order is being challenged by this revision an plication.

(3.) Schedule II, Item 13 of the Bombay Court Fees Act provides a fixed court fee of Rs. 5 in respect of a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented to the High Court. Under Section 7(1) of the Bombay Court Fees Act, 1953, the amount of fee payable on memorandum of appeal against an order under appeal 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. According to the learned Advocate for the applicant Shri V. M. Kulkarni, Section 7(1) would not apply in the present case because the award made by the Court under Section 18 of the Land Acquisition Act, 1894, would not be a decree or an order having the force of a decree and the only charging provision that can apply is Schedule II Article 13 (c) which prescribes fixed court fee of Rs. 5. Reliance is placed on the observations in Dewan Brothers v. Central Bank of India, AIR 1976 SC 1503, where it was held that an order of the Tribunal under Displaced Persons (Debts Adjustment) Act is not a decree and court fee will be payable under Schedule II, Article 11 of the Bombay Court Fees Act, 1870 (which corresponds to Schedule II Article 13 of the Bombay Court Fees Act, 1959) and that this order will not be governed by Schedule I, Article 1 of the Bombay Court Fees Act which prescribes ad valorem court fees. Shri Kulkarni contended that an award passed by the Court under the Land Acquisition Act would not amount to a 'decree' and he relied on the observations in paragraph 22, where Their Lordships endorsed the view taken by this Court in Taxing Officer, High Court, Appellate Side. v. Jamnadas Dharamdas, AIR 1959 Bombay 563. The observation were as follows :