Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified -j IN THE HIGH COURT OF DELHI AT NEW DELHI + LA. Add. No. 149/2007 & CM No. 7434/2007 \ and WP fC) No. 3864/2007 Reserved on : September 26, 2008 Pronounced on : October «lo. 2008 % 1) LA. Add. No. 149/2007 & CM No. 7434/2007 Major General Kapil Mehra through : VERSUS Union of India & Anr. through : 2) WP fC) No. 3864/2007 Major General Kapil Mehra & Ors. through : VERSUS Union of India through : . . . Appellant In-person. . . . Respondents Mr. Sanjay Poddar, Advocate for the respondent No.l/LAC. Mr. Gaurav Sarin, Advocate for the respondent No.2/DDA. . . . Petitioners Petitioner No.l in-person. . . . Respondent Mr. Sanjay Poddar, Advocate for the respondent/LAC. CORAM THE HON'BLE MR. JUSTICEA.K. SIKRI THE HON'BLEMR. JUSTICEMANMOHANSINGH 1. 2. 3. WhetherReportersof Local newspapersmay be allowed to see the Judgment? To be referred to the Reporter or not? Whetherthe Judgmentshould be reportedin the Digest? IA.A. No. 149/2007 & WP No. 3S64/2nn7 nsk Page 1 of 29 A.K. SIKRK J. 1. CM No. 7434/2007 in LA. Add. No. 149/2007 Tine appellant had moved this application under Section 149 of the Code of Civil Procedure, 1908 seeking extension of time in paying the court fee. Before we deal with the prayer made in this application, it would be apposite to throw some light on the background facts giving rise to filing of this appeal and the writ petition. 2. The respondents issued Notification dated 13.11.1959under Section4 of the Land AcquisitionAct, 1894 (hereinafter referred to as the 'Act') acquiring certain land situated in village Mehrauli. After making the award, possession was taken and while doing this exercise, plot of land situated in Vasant Kunj Residential Scheme in Mehrauli covered • by khasra No. 1300-Minold, 697 New, measuring12 bigha, which belonged to the appellant, was also taken possession of by the respondents. The appellantquestionedthis actionof the respondents on the ground that his land was not covered by the aforesaid notification. WP (C) No. 1134/1992filed by him was allowed vide j judgment dated 30.1.1996 accepting his plea and declaring the i acquisitionproceedingswith respect to the land of the appellant as illegal and quashing the same. The respondents were directed to restorethe possessionof the appellant'sland to him within 90 days. It was also observed that if for any reason it was not possible to restore possession, the appellant would be entitled to LA.A. No. 149/2007&WPNo. 3864/2007 nsk Page 2 of29 /i alternate equal area of land. SLP of the DDA filed against that judgment was dismissed by the Supreme Court on 18.11.1996. Even when the land was not restored or alternate land allotted to the appellant, he filed Civil Contempt Petition No. 461/1996 on 16.12.1996. After issuance of the notice in this contempt petition, the respondents issued fresh notification under Section 4 and Section 17 of the Act on 19.2.1997 acquiring the appellant's land. According to the appellant, this was blatantly a mala fide act on the part of the respondentsto circumventthe court orders and to escape the noose of contempt. The respondents, however, justified the action of acquisitioninter alia on the ground that DDA was unable to return the plot as the same had been amalgamatedin the huge residential scheme called Vasant Kunj and the plot of the petitioner had become a part and parcel of Vasant Kunj in March 1987 itself. It was also stated by DDA in its affidavit filed on 26.2.1997 that it was unable to allot an equal area of land elsewhere and the DDA would be paying the market value of the plot as prevalent in Vasant Kunj as on 19.2.1997 when Section 4 notification was issued. Be that as it may, the appellant did not challenge the Notification dated 19.2.1997. The Land Acquisition Collector made his award No. 2/98-99 on 18.9.1998. According to the appellant, the compensation fixed was dismal, low and not the market value of the land prevailing in Vasant Kunj as on 19.2.1997. Therefore, he sought reference under Section 18 of the Act. The said reference has been answered by the learned Addl. District Judge in his impugned LA.A. No. 149/2007& WP No. 3864/2007 nsk Page 3 of 29 :k award dated 24.2.2007 fixing the market value at Rs.24 lacs of his plot (which comes to approximately Rs.200/- per sq. yd.). According to the appellant, the market value of the residential leasehold plot at Vasant Kunj at the relevant time was approximately Rs.50,000/- per sq.yd. Therefore, the appellant feels dissatisfiedwith the impugned award and he has preferred the present appeal for enhancement bf the compensation @ Rs.50,000/- per sq.yd. The compensationclaimed is Rs.60 crores (approx.) as against Rs.24 lacs awarded to him by the learned ADJ. However, on this differential the appellant does not want to pay the court fee. Hence, the instant application. 3. It was stated in para 11 of this application that the system demands payment of court fee, which would be around Rs.60 lacs (approx.) in the present case, in the beginning itself, at the time of filing of the appeal, which is totally unjust and amounts to state banditry against a weak law abiding citizen. Prayer made in this application was that the appellant be allowed to affix the court fee at a later stage when the enhancement, that may be allowed by this Court, is announced. Along with the application, he gave an affidavit undertaking to give the court fee at that stage. However, the appellant, who appeared in-person, took altogether different stand at the time of arguments. He raised the plea that ad valorem court fee on the amount of differential claimed in the appeal is not payable as per the provisions of the Court Fees Act, 1870 which requires only fixed court fee to be LA.A. No. 149/2007& WP No. 3864/2007 nsk Page 4 of 29 paid in such cases. The appellant has gone to the extent of arguing that in case it is held that ad valorem court fee is payable, then such a provision in the court fee is unconstitutional. It is for this reason WP (C) No. 3864/2007 is also preferred by the appellant for declaring Section 8 of the Court Fees Act, 1870 as unconstitutional. The question of considering the prayer made in the writ petition would arise only if it is decided that the appellant is required to pay the ad valorem court fee. Therefore, it would .be advisable to first address the issue of payment of court fee, namely, whether fixed or ad valorem. 4. The appellant referred to Article 1 of Schedule 1 of the Court Fees Act, 1870 and Article 17(iv) of Schedule II, which are as under 'Article 1 to Scheduled 1. Plaint, written statement pleading a set off or counter daim AD VALOREM When the amount or value of the subject-matter in dispute does not exceed five rupees When such amourit or value exceeds five rupees, for every five rupees, or part thereof, in excess of five rupees, up to one hundred rupees When such amount or value exceeds one hundred rupees, for every ten rupees, or part thereof, in excess of one hundred rupees, up to one thousand rupees When such amount or value exceeds one thousand rupees, for every one hundred rupees, or part thereof, in excess of LA. A. No. 149/2007 & WP No. 3864/2007 nsk Proper Fee Six annas Six annas Twelve annas Five rupees Page 5 of 29 K one thousand rupees, up to five thousand rupees When such amount or value exceeds five thousand rupees, for every two hundred and fifty rupees, or part thereof, in excess of five thousand rupees, up to ten thousand rupees When such amount or value exceeds ten thousand rupees, for every five hundred rupees, or part thereof, in excess of ten thousand rupees, up to tu/enty thousand rupees When such amount or value exceeds twenty thousand rupees, for every one thousand rupees, or part thereof, in excess of twenty thousand rupees, up to thirty thousand rupees When such amount or value exceeds thirty thousand rupees, for every two thousand rupees, or part thereof, in excess of thirty thousand rupees, up to fifty thousand rupees. When such amount value exceeds ...ly thousand rupees, for every five thousand rupees, or part thereof, in excess of fifty thousand rupees Provided that the maximum fee leviable on a plaint or memorandum of appeal shall be three thousand rupees. Article 17(4) to Schedule-ll 17. Plaint or memorandum of appeal in each of the following suits XX XX XX (iv) to set aside an award; LA.A. No. 149/2007& WP No. 3864/2007 nsk or fifty Ten rupees Fifteen rupees Twenty rupees Twenty rupees Twenty-five rupees Ten rupees Page 6 of 29 5. His first submission based on the aforesaid provisions was that ad valorem court fee as per Article 1 of Schedule1was required only in an appeal filed againstthe judgment of a civil court or revenue court. He submitted that that was not the case here inasmuch as the reference court, which decided reference under Section 18 of the Act was a 'SpecialCourt'speciallyconvenedthrougha notificationissued under Section3(d) of the Act vide which the concerned Addl. District Judge was given powers to decide such references. He was, therefore, not acting as a civil court or revenue court while dealing with these references. However, reference petition filed under Section 18 of the Act was not a suit. Likewise, the said reference was answered by an 'award' which was not a decree. Therefore, such a court functioned in the capacity of a Special Tribunal giving the powers under the Act and labeling the award given by it as 'deemed decree' under Section 26(2) of the Act was merely a fiction. In support of this argument, he relied upon the following two judgments (a) Saibesh Chandra Sarkarv. Sir Bejoy Chand Mahatap Bahadur XXVI Calcutta Weekly Notes 506 This was a case relating to the Act itself and after analyzing the nature of proceedings before the reference court under Section 18 of the Act, the Calcutta High Court observed as under "The "Court" means the principal Civil Court of Original Jurisdiction unless the local Government has appointed a Special Judicial Officer to perform the functions of the Court under the Act, and the provisions of the Code of Civil LA.A. No. 149/2007& WP No. 3864/2007 nsk , Page 7 of 29 r 0^ Procedure are to apply to proceedings before the Court under the Act. The Act creates a special jurisdiction and provides a special remedy. And ordinarily when jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy, such jurisdiction is exclusive. [See Bhandi Singh v. Ramadhin Roy, 10 C.W.N. 991 (1905)] XX XX XX ....The person aggrieved by the award whether his objection be to the measurement of the land, the amount of compensation, the persons to whom .it is payable, or the apportionment of the compensation among the persons interested may apply to the Collector for a reference to the Court. The "Court", by which is meant the principal Civil Court of Original Jurisdiction or a Judicial Officer specially empowered to perform the functions of the Court under the Act has to decide the questions referred to the Court. That being so, it is not reasonable to hold that the Act, while creating a special Court to decide such questions intended an adjudication of any question relating to apportionment by the Ordinary Civil Courts." (b) Naresh Chandra Bose v. Hira La! Bose & Ors., XX Calcutta Weekly Notes 360 This is again a case where the Calcutta High Court held that a court constituted under the Land Acquisition Act was a Special Tribunal constituted to hear references against the orders passed by the Calcutta Improvennent Trust. At this stage, we may only comment that in the first case the issue was as to whether the jurisdiction of civil court was barred in view of the special remedy provided under the Act by constituting a Special Court which was to hear referencesagainstthe orders passed by the Land AcquisitionCollector/authorities. In the second case, issue was as to whether the said Tribunal was also a Court and had the power to call for the records of other M.A No. 149/2007& WP No. 3864/2007 nsk Page 8 of 29 courts and the High Court answered the question in the affirmative holding that power to call for records is a power which is undoubtedly inherent in the Judge and on Land Acquisition Court and consequently in the Special Tribunal. 6. In support of the submission that award of the reference court cannot be termed as 'decree', the appellant relied upon the judgment of the Supreme Court in Diwan Bros. v. Central Bank of India, Bombay & Ors., (1976) 3 SCC 800. In that case, appeals were preferred against the order passed by the Tribunal under the Displaced Persons (Debts Adjustment) Act, 1951. Question was as to whether such an award would be a decree as the appellant was seeking higher amount than what was claimed before the Tribunal under the said Act. The Apex Court held that the said order would not be a 'decree' and, therefore, ad valorem court fee was not payable. After discussing the history and background behind DisplacedPersons (DebtsAdjustment) Act, 1951, the Supreme Court observed that it would appear that the intention of the Parliament was to bring out a legislation which would provide for a cheap and expeditious remedy to the displaced persons and entrust the work to a tribunal which-may be able to decide the claims quickly instead of leaving the displaced debtors or creditors to follow the dilatory and cumbersome process of the civil courts. Further, the Act is a beneficial statute meant for advancing the cause of the displaced debtors and creditors by conferring substantial benefits on them ifthey are able to prove their claimsand IA.A. No. 149/2007 & WP No. 3864/2007 nsk Page 9 of 29 in these circumstances, it is clear that the Legislature could never have intended that the claimants should have to pay heavy court fees either in getting their claims adjudicated by the tribunal or even in filing appeals against the decrees of the tribunals. It was further held that under the Act the decree which the tribunal passes is not a decree of the civil court but a decree passed by a tribunal in a proceeding under Section 5 and Section 9 of the Act. Whether a claim is disallowed or allowed, the order passed by the tribunal would be a decree in both cases. But is it a decree for Article 11 of Schedule 11 is the question. In the process, the Supreme Court also interpreted the definition of 'decree'as appearing in Section 2(2) of the CPC as per which the following three essential conditions are necessary (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue court. 7. The Apex Court was of the opinion that the Tribunal constituted under the 1951 Act cannot be called a court. The proceedings before the tribunal start with an application and not a plaint and lastly the claim before the tribunal is a proceeding and not a suit. Hence, none of the requirements of a decree are to be found in the decision given by the tribunal even though the Legislaturemay have described the decision as a decree. A mere description of the decision of the tribunal as a decree does not make it a decree within the meaning of LA.A. No. 149/2007& WP No. 3864/2007 nsk Page 10 of 29 A., the Court Fees Act. Moreover the objection of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy, it was also held that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant. Thus where an adjudication given by a tribunal could fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the court would apply that provision which was beneficial to the litigant. 8. The submission of the appellant was that the constitution of reference court/tribunal under Section 18 of the Act is also to provide succour to those who are granted lesser compensation by the LAC. He highlighted the facts of his own case and submitted that when such a meagre compensation is awarded to him as against the real market value of the land, asking the appellant to pay ad valorem court fee would be totally unjust and would amount to depriving a person to avail appropriate remedy available in law. The appellant also referred to and relied upon the judgments of the Bombay High Court in Hirji Virji Jangbari v. Covernment of Bombay, AIR 932) 1945 Bombay 348 and Punjab High Court in the case of Kanwar Jagat Bahadur Singh v. The Punjab Estate, AIR 1957 Punjab 32, where those High Courts had taken the vieu/ that fixed court fee is payable. LA.A. No. 149/2007& WP No. 3864/2007 nsk Page 11 of 29 2> 9. The aforesaid submissionsof the appellant appear to be attractive, more particularlywhen these arejexaminedin the contextof the facts of the appellant'scase wherein he was deprivedof his land illegally and the respondentswoke up initiatingthe acquisitionproceedings only after realizingtheir folly that the appellant was dispossessedof his land on the basis of purported notification which did not cover his land. Furthermore,when accordingto the appellanthe is given farcical amount of Rs.24 lacs against his demand and expectationof Rs.60 crores (approx.). No doubt, asking the appellant to pay court fee of Rs.60 lacs even before his claim on merits is considered would be onerous. However, we are concerned here with the legal provisions which govern the case and hold the field. 10. Arguments of the appellant, we are constrained to note, already stand answered by the Apex Court and other courts in subsequent judgments. We may first referto the judgmentof the SupremeCourt in the case of C.C. Chanshamdas & Ors. v. Collector of Madras, ® (1986) 4see 305. Significantly,the judgmentsof the Bombay High Court in Hirji VirjiJangbari(supra), the Punjab High Court in Kanwar Jagat BahadurSingh (supra),and also of this Court in MangalSen v. Union of India, AIR 1970 Delhi 44, which had followed the Punjab High Court, were overruled by the SupremeCourt in this case. 11. When the question of payment of court fee for the land under the Requisitioningand Acquisition of Immovable Property Act, 1952 (which is par! materiawith the Land AcquisitionAct) came up for lA.A. No. 149/2007& WPNo. 3864/2007 nsk Page 12 of 29 A consideration, there were two conflicting views expressed by different High Courts. In the aforesaid judgmentsof the Bclmbay, Punjab and this Court, view tai<en was that in such appeals filed against the award of the reference court, fixed court fee is to be affixed. View of some other High Courts was that ad valoremcourt fee is to be paid. The SupremeCourtwhile overrulingthe judgments of those courts which had taken the view that fixed court fee is payable, affirmed the view that ad valoremcourt fee is payable in such cases. While holdingthis view, the SupremeCourt discussedthe issue in the following manner:- "18. In Satya CharanSurv. State of W.B., Air 1959 Cal 609, the High Court of Calcutta while following the decision in Ananda Lai Chakrabutty case expressly dissented from the view expressed in Hirji VirjiJangbari case. After the Bombay Court Fees Act, 1959 came into force a similar question arose for consideration in C.B.C. Trustv. Union of India, (1968( 70 Bom LR 407 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 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 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 I read with Section 7(1) of the Bombay Court Fees Act, 1959. They disapproved the decision of the Bombay High Court in Hirji VirjiJangbari case and followed the decision of the Calcutta High Court in Ananda La! Chakrabutty case. An identical question came before this Court for consideration is Sahadu Cangaram Bhagadev. SpL Deputy Collector, (1971) 1 SCR 146 : (1970) 1 see 685 : AIR 1971 SC 1887. In that case this Court approved the view expressed by the Calcutta High Court in Ananda Lai Chakrabutty case and in C.B.C. Trust case and held that the contention that the award made by the Arbitrator had no effect and, therefore, it could not be consideredas an'order, was not acceptable. The Court proceeded to hold that though lA.A. No. 149/2007 & WP No. 3864/2007 nsk Page 13 of 29 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, tljie award of the Arbitratorwas undoubtedlya formal expression of a 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 distinguishthis decision from the present case on the ground that while the expression'order' had not been defined in the BombayCourt Fees Act, 1959 which arose for considerationin 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 expressionused and not defined in the Act, but defined in the Code of Civil Procedureshould have the meaning respectively assigned to them in the said Code, and in view of the above distinction the decision in Sahadu Cangaram Bhagade case would not govern the present case. We do not find much substancein the abovecontention. On carefullygoingthrough the decision of this Court in Sahadu Qangaram Bhagadecase we find that the decisiondid not reallyturn upon the presence or the absence of the definition of the word 'order' in the Bombay Court Fees Act, 1959 although there is a referenceto this aspect of the matter in the course of the decision. The relevant part of the decisionin SahaduCangaramBhagadecase at page 150 reads like thus: (SCC p. 688, para 3) 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 Section 26 of the Land Acquisition Act, 1894 whereunder 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 Section 8 of the Act is executable or not is a matter that requires further consideration. 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