ROOP NARAIN Vs. KISHAN SHARAN SINGH

JUDGEMENT

(1.) THIS is a reference on the question of Court Fees payable on a memorandum of appeal in an appeal under Section 54 of the Land Acquisition Act, 1953 (for short, `the Act, 1953' ). Two questions have been referred by the learned Single Judge, in view of the conflicting and contradictory decisions of this Court in H. Martin De Silva's case (1) and C. Alexander's case (2) The ques-tions formulated are as follows: " (i) Whether the proceedings before the learned Judge on the reference having been made by the Land Acquisition Officer are in the nature of suit? and, whether the nature of the decision or the award cannot be considered to be `decree' in the strict sense and in the me-mo of the appeal, court fee should be held to be payable as if the appeal has been filed against the order and not against the decree? (ii) Whether advalorem Court fee is payable on an appeal under Section 54 of the Act, 1953 ?"

(2.) THE learned counsel for the appellants contended in this case that the quantum of total compensation awarded in lieu of the acquired property was not under-challenge. What is under-challenge is the apportionment of shares in the property, by which the appellants are aggrieved. As ad valorem court fees is to be paid on the difference between the amount awarded and the amount claimed, when there is no difference in the amount awarded and the amount claimed, ad valorem court fees cannot be demanded. THE learned counsel for the appellants relied upon decision of this Court in H. Martin De Dilva vs. Martin De Silva (AIR 1957 Rajasthan 275 ). It was also contended that the single Bench in Rajasthan State Industrial Development Corporation vs. State of Rajasthan (3), does not notice decision in H. Martin De Silva's Case (supra ). It was also contended that a distinc-tion has to be made between the cases referred to by the Land Acquisition Officer to the Court under Section 18 of the Rajasthan Land Acquisition Act and under Section 30 of the Act. In the former, the question involved is as to adequacy of compensation, whereas in the latter, the claim relates only to apportionment and not to enhancement of compensation. It was further contended that even the Divi-sion Bench judgment in C. Alexander's case (Supra), the decision was based on concession and, therefore, could not have any value as a precedent. It was further contended that the law of precedent requires that a Division Bench follows the decision of an earlier Division Bench, and in case of difference of opinion, has to refer the dispute to a larger Bench, but it cannot take a different view by itself. On this principle, the later decisions of the Division Bench and the Single Bench cannot be taken as precedents. THE learned counsel for the respondents, on the contrary, submitted that in view of the clear provisions of law, ad valorem court fee is attracted on an appeal under Section 54 of the Act. According to the learned counsel, the distinction sought to be drawn between cases in which reference is made under Section 18 and cases in which reference is made under Section 30 of the Act, is imaginary so far as payment of court-fee is concerned. It was contended that when an apportionment of compensation is challenged, what is actually claimed is a higher share in compensation. THEre is still a difference between the amount awarded on the basis of apportionment, according to the appellants. THE ad valorem court-fees, according to the learned counsel for the respondents, shall be attracted on the basis of the difference decision of the appellate court, may make to the appellant in terms of money. Section 46 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred to as `the Act, 1961') provides for fee on memorandum of appeal agai-nst order relating to compensation. It is worded as follow- "46. Fee on memorandum of appeal against order relating to compensation.-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 by the appellant. "

(3.) IN INdore Development Authority vs. Tarak Singh (4), the Supreme Court held that when the appellant seeks to avoid the decree of reference court, it must be construed that the appellant is seeking to avoid the amount of higher compensation determined by the reference court, ad valorem court fee was held to be attrac-ted in such appeal. However, this was not a case of apportionment, but was a case in which a body for the benefit of which acquisition was made, challenged the enhancement of compensation by the reference court. The case is, therefore, clearly distinguishable because it was case in which the appellant directly wanted to avoid payment of a sum of money arising out of a difference between the amount awarded by the Land Acquisition Officer and the amount enhanced by reference court.