1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 386 OF 2005 IN APPEAL (L) NO. 703 OF 2004 IN LAND ACQUISITION REFERENCE NO. 17 OF 1984 The Municipal Corporation of Greater Bombay .. Appellant Vs. Bawa Birsingh and ors. .. Respondents WITH CHAMBER SUMMONS NO. 387 OF 2005 IN APPEAL (L) NO. 702 OF 2004 IN LAND ACQUISITION REFERENCE NO. 14 OF 1984 The Municipal Corporation of Greater Bombay .. Appellant Vs. Bawa Harbhajan Singh and ors. .. Respondents Mr. S. U. Kamdar, Sr. Counsel, a/w Mr. Harshad Pimple i/by S.H. Ujjainwala for appellant. Ms. Mirashi i/by Shah & Sanghvi for claimants. Mr. C.M. Kothari for respondent nos.1 to 4. Ms. Uma Palsule Desai, AGP for respondent no.5. 2 CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. Reserved on : February 18, 2010 Pronounced on: March 05, 2010. ORDER : (PER B.H.MARLAPALLE, J.) 1. First Appeal No. 968 of 2002 came to be decided by the learned Single Judge on 16/10/2002 and in para 12 of the judgment it has been stated as under:- “12. In view of the above discussion following position emerges: (i) An appeal by a person whose land is acquired claiming enhancement of the compensation, Court Fee is covered by sub section (1) of section 7 and, therefore, the Court Fee is payable only on the difference between the amount claimed in an appeal and the amount awarded by the trial court and Court Fee is not payable on the amount of solatium; 3 (ii) Sub-section (1) of section 7 of Bombay Court Fees Act is not applicable in respect of an appeal by the State challenging the enhancement of compensation; (iii) In case of an appeal by the State, court fee is payable under Entry 1 of Schedule 1 to the Bombay Court Fees Act on the subject matter of appeal which includes the amount of solatium as well as the amount awarded under sub section (1A) of section 23 of the Land Acquisition Act.” By Amendment Act No. 22 of 2004, brought into force with effect from 28/9/2004, the State Government amended the scheme of Section 7 of the Bombay Court Fees Act, 1959 and below sub-section (1) the following proviso and explanation came to be added: “Provided that, where the State Government is an acquiring body, it shall not be liable for payment of fee in such appeals. Explanation.- For the purposes of this sub-section, “amount” means 4 the amount in dispute and it shall not include the amount of statutory benefits.” 2. On 28/1/2005 the Taxing Master passed an order in Appeal Lodging Nos.702 and 703 of 2004 filed by the Municipal Corporation of Gr. Mumbai to pay full ad ad-valorem fee on the amount in dispute in both the appeals. The Municipal Corporation of Gr. Mumbai, therefore, took out Chamber Summons Nos. 386 and 387 of 2005 to challenge the order passed by the Taxing Master and in the said Chamber Summons the above referred reference has been made. 3. Having regard to the amendments in Section 7 of the Bombay Court Fees Act, 1959, another learned Single Judge in Chamber Summons Nos. 386 and 387 of 2005 recorded dis-agreement with the findings in sub paragraphs (ii) and (iii) of the judgment in First Appeal No. 968 of 2002 and as quoted hereinabove and as per the order dated 5/5/2006 the learned Single Judge made this reference in Chamber Summons Nos. 386 and 387 of 2005 filed in Appeal Lodging Nos. 703 and 702 of 2004. 4. The following two issues fall for our considerations, namely, 5 (A) Whether the Municipal Corporation of Greater Mumbai is exempted from payment of Court Fees on enhanced amount of compensation which is the subject matter of challenge in the appeals? And (B) Whether Court Fee is required to be paid on the amount of Solatium as well as the amount awarded under Section 23(1A) of the Land Acquisition Act, 1894 by the Reference Court? 5. It was submitted by Mr. Kamdar, the learned Senior Counsel appearing for the Corporation, that the Corporation is a Town Planning Authority and is thus a local authority within the meaning of Section 3(aa) of the Land Acquisition Act, 1894 (the Act for short). The land has been acquired for the public purpose as defined under Section 3(f) of the Act. The acquisition has been done by the State Government on the requisition submitted by the appellant – Corporation. It was further submitted that the acquisition so made is not under Part-VIII of the Act. Mr. Kamdar, therefore, urged that as per the 6 proviso added below Section 7(1) of the Bombay Court Fees Act, 1959, the Corporation is not required to pay full court fees on the amount in dispute in both the appeals on ad-valorem basis and it ought to be exempted from payment of court fees in the said appeals. On the second issue, Mr. Kamdar submitted that the explanation below the proviso to Section 7(1) of the Bombay Court Fees Act, 1959 is unambiguous and from its plain meaning, the term “amount” means the amount in dispute and it shall not include the amount of statutory benefits. Solatium is granted under Section 23(2) of the Act, whereas under Section 23(1A) of the Act, the Reference Court is required to grant an amount calculated at the rate of 12% per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4(1) in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Thus, both these are additional amounts granted as statutory benefits and they are not intended to be included in the amount in dispute. 6. It would be appropriate for us to consider the scheme of the Act. Sections 3(a), 3(aa) and 3(f) are reproduced as under:- “3(a) the expression “land” includes benefits to arise out of 7 land, and tings attached to the earth or permanently fastened to anything attached to the earth; 3(aa) the expression “local authority” includes a town planning authority (by whatever name called) set up under any law for the time being in force; 3(f) the expression “public purpose” includes- (i) the provision of village-sites or the extension, planned development or improvement of existing village-sites; (ii) the provision of land for town or rural planning; (iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned; (iv) the provision of land for a corporation owned or controlled by the State; (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural 8 calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State; (vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State; (vii) the provision of land for any other scheme of development sponsered by Government or, with the prior approval of the appropriate Government, by a local authority; (viii) the provisions of any premises or building for locating a public office, but does not include acquisition of land for Companies;” 9 As per Section 4(1) of the Act, whenever it appears to the appropriate Government, the Commissioner or Land Acquisition Officer that land in any locality is needed or is likely to be needed for any public purpose, or for a Company, a notification to that effect, shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality, the last dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification. After considering the report submitted under Section 5A(2) that any particular land is needed for a public purpose, a declaration shall be made to that effect under Section 6(1) of the Act in respect of the land covered by the notification under Section 4(1). Every declaration shall be published in the Official Gazette and in two daily newspapers circulating in the locality in which the land is situated and one of the newspaper shall be in the regional language. The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be and after making such declaration the appropriate Government or, as the case may be, the 10 Commissioner may acquire the land. The Collector is required to make an award under Section 11 so as to determine the value of the land on the date the notification under Section 4(1) of the Act was issued and such an award is required to be made within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. After the award is made, the Collector is required to issue notice under Section 12 to such persons interested and thereafter shall take possession of the land under Section 16 of the Act. If the land owner or any person interested is not satisfied with the amount awarded by the Collector, a written application is made to the Collector, which, in turn, is referred to the Court for determination of the market value under Section 18 of the Act. The order passed by the Reference Court for enhancement of compensation or otherwise is appealable under Section 54 of the Act. This appeal is by the aggrieved person i.e. the land owner or the person interested, or by the body for whom the land has been acquired. Chapter VII of the Act deals with acquisition of land for companies and as per Section 41, the Collector shall require the Company to enter into an agreement with the appropriate Government providing to its satisfaction for the payment to the Government, the cost of acquisition. 11 7. Though under Part-II the land is acquired for any public purpose as defined under Section 3(f) of the Act, it includes acquisition for the local authority i.e. the Town Planning Authority or for the Corporation owned or controlled by the State or for carrying out educational, housing, health or slum clearance scheme sponsered by the Government or by any authority established by the Government for carrying out any such scheme or planned development of land from public funds in pursuance of any scheme or policy of the Government. Thus, under the Act, the acquisition, either under Part-II or Part-VII is made by the Government and such acquisition is for the State Government (any of its department), Town Planning Authority/Local Authority, a Corporation owned or controlled by the State Government, for the Co-operative Societies or any other society registered under the Societies Registration Act or any Company. If the literal meaning of the word “where the State Government is an acquiring body, it shall not be liable for payment of court fee in such appeals” is taken into consideration, it would be reasonable to believe that any appeal filed by the body for whom the land was acquired would not be required to pay any fee in the appeals? Therefore, the word “where the State Government is an acquiring body” is required to be read and interpreted as 12 “where the State Government is an acquiring body for itself”. It is well known that when the State Government acquires land at the instance of the local authority, a town planning authority or a corporation owned by the State Government, the compensation amount is paid by such body and not by the State Government. All the land acquisitions under the Act are by the State Government but these acquisitions are either for the State Government or for other public/private bodies/companies/societies. The payment of compensation is made by the acquiring body. The State Government would pay compensation only in the case where the land is acquired for itself. The term “where the Government is an acquiring body” has to be, therefore, interpreted to mean that where the land has been acquired for the State Government. It is now well settled that when a reference is made under Section 18 of the Act, the body for whom (other than the State Government) the land has been acquired, is a necessary party before the Reference Court and it has the right to lead evidence and oppose the enhancement of compensation, as claimed and this is equally applicable to the land acquired by the local bodies or the town planning authority or any undertaking or corporation of the State. The word “State Government” cannot be read as “State” as was the basis for the arguments advanced by Mr.Kamdar, the learned Senior Counsel. If the amended provision of 13 Section 7(1) has used the word “State Government”, it does not mean that every State undertaking/instrumentality is automatically included in the said term. Such a meaning could be accepted only if the word used was “State” instead of “State Government”. 8. In the statement of objects and reasons published in the Gazette dated 28/9/2004 while the subject amendment was incorporated, reference has been made to the judgment in First Appeal No. 958 of 2002 (Supra) and First Appeal No. 232 of 2003 rendered by the Aurangabad Bench of this court. In First Appeal No. 968 of 2002 this court, inter alia, held that in case of an appeal filed by the State, court fee is payable under Entry 1 of Schedule – I appended to the Bombay Court Fees Act, 1959 on the subject matter of the appeal which includes the amount of solatium as well as the amount awarded under sub section (1A) of Section 23 of the Act. Whereas the judgment in First Appeal No. 232 of 2003 directed the State Government, inter alia, to seek exemption in payment of court fees in the land acquisition matters. By taking into consideration these two decisions rendered by this court, the Government thought it fit not to levy court fees when the appeal is filed by the State Government in respect of the land acquired for itself and the amount of statutory benefits should not 14 be included in the disputed amount so that court fees is not charged on these statutory benefits. The intention of the State Government is clearly aimed at ensuring that while filing appeals challenging the awards of the Reference Court, the State Government should not be burdened to pay court fees and it is well known that the State Government files appeal when the land is acquired for itself. If the land is acquired for either a public body or a town planning authority or a special town planning authority or any undertaking or corporation of the State Government, the appeals are not required to be filed by the State Government so as to challenge the award passed by the Reference Court and such appeals are filed by the bodies for whom the land has been acquired by the State Government. 9. Hence, we answer the issues as under: “(A) Court Fees is not required to be paid in the appeals filed by the State Government and Court Fees is required to be paid in all the appeals filed by any other bodies other than the State Government; and (B) The amount of solatium as well as the amount paid under 15 Section 23(1A) of the Act is not required to be included in the disputed amount for payment of Court Fees. 10. We have answered the reference in the above terms and consequently, Chamber Summons Nos. 386 and 387 of 2005 stand dismissed. Appeals to proceed for hearing on removal of office objections, if any. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE,J.)