HIRJI VIRJI JANGBARI Vs. GOVERNMENT OF BOMBAY

JUDGEMENT

(1.) This is a reference made by the Taxing Officer under Section 5 of the Court-fees Act. Under the provisions of Rule 75A of the Defence of India Rules, 1939, Plot No. 113 in the Sion- Matunga Estate belonging to the appellant was acquired by Government for and on behalf of the Defence Authorities. As no agreement could be arrived at between the claimant and the Government with regard to the amount of compensation payable, the Government of Bombay appointed Mr. M. S. Noronha, Chief Judge of the Court of Small Causes, Bombay, as arbitrator under Section 19 (1)(b) of the Defence of India Act, 1939,. to determine the amount of compensation payable to the claimant. The arbitrator fixed the amount payable to him at Rs. 45,355. The claimant being dissatisfied with this amount filed an appeal in which he claimed a further sum of Rs. 47,896-8-0 in addition to the amount awarded to him by the arbitrator.

(2.) The question referred for my decision is whether the appellant should pay ad valorem Court-fee on the memorandum of appeal on the additional sum of Rs. 47,896-8-0. claimed by him, or whether he is liable to pay only fixed Court-fee as contended by him, under Clause 11 of Schedule II of the Court-fees Act.

(3.) Mr. Patwardhan who appears for the Government of Bombay contends that the appellant is liable to pay ad valorem court-fee under the provisions of Section 8 of the Court-fees Act. That section provides that the amount of fee payable under the 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. On the other hand it is contended by Mr. Mahimtura who appears for the claimant that the appeal falls under Clause 11 of Schedule II of the Court-fees Act, which provides that a fixed court fee should be paid on a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. Mr. Vakil, Assistant Solicitor to the Central Government at Bombay, who had asked for permission to be heard in the matter as the Government of India are interested: in the question, also supported the contention of Mr. Mahimtura.