P.Jaganmohan Reddy, J. - (1.) The question before this Full Bench is whether the office is right in demanding Court-fee on the interest payable under Section 28 of the Land Acquisition Act on compensation payable for the compulsory acquisition of land under the said Act.
(2.) The Government filed an appeal against compensation awarded to the respondents at the rate of Rs. 6.00 per sq. yd. by the Subordinate Judge, Guntur, on 20-7-1964 in O. P. No. 61/62. In that appeal, the respondents preferred cross-objections claiming enhanced compensation of Rs. 4,779.38 ps. together with 15% solatium. Interest on the enhanced amount was also claimed, but court-fee on the amount of compensation and solatium alone was paid. The High Court office relying on an observation by a Division Bench of this Court consisting of Satyanarayana Raju, J., (as he then was) and Venkatesam, J., in Dodla Mallaiah v. State of Andhra Pradesh, 1964-1 Andh WR 185 = (AIR 1964 Andh Pra 216) called upon the Cross-objector to include interest also in his valuation and pay Court-fee thereon. if he was not relinquishing claim to it. The Cross-objector pointed out that since the Government had taken possession of the acquired land on 11-1-1960, the Government was bound to pay the statutory interest from the date of possession till the date of actual payment and therefore interest need not be separately valued for purposes of Court-fee. AS the office did not accept his contention the matter was posted for orders of Court and it came up before Venkatesam. J., It may be pointed out that the learned Judge who delivered the judgment in Dodla Mallaiahs case 1964-1 Andh WR 185= (AIR 1964 Andh Pra 216) on behalf of the Bench as that decision "was sought to be distinguished" The Bench consisting of Basi Reddi and Chandrasekhara Sastry, JJ. after nothing the contentions of the learned advocate for the Cross-objector Sri A. V. Krishna Rao, that the observations in Dodla Malliahs case were obiter and even if they are not treated as obiter, that decision requires reconsideration in so far as it relates to the payment of Court-fee on interest, observed that these contentions were not without force and merit consideration by a Full Bench.
(3.) It may be mentioned that in Dodla Malliahs case, 1964-1 Andh WR 185 = (AIR 1964 Andh Pra 216) the question that had to be considered was whether Court-fee under the Andhra Pradesh Court-fees and Suits Valuation Act was payable under Section 48 or Section 49. It was contended by Sri Sankarasatry before that Bench that it was Section 49 that would apply to appeals from decrees awarding compensation under the Land Acquisition Act and since Court-fee payable under Section 49 is the same as that payable in he lower Court, Court-fee of Rs. 2.00 paid in appeal was sufficient. Venkatesam, J., after holding that Section 48 of the Act which expressly deals with appeals claiming enhanced compensation governs the case, but not Section 49, observed at page 192 as follows: "The appellants also claim 15 per cent statutory solatium besides the compensation amount. It was laid down in Brahmanandam v. Secy. of State, ILR 53 Mad 48 = (AIR 1930 Mad 45). that where a person being dissatisfied with the amount of compensation awarded to him under Section 18, Land Acquisition Act, wants to appeal insisting in case of his success that not only the excess market value but also 15 percent of the same should be decreed in his favour, he must pay court-fees not only on the excess market value, but also on 15 percent thereon. It is also needless to point out that since the appellants are claiming interest on that amount, they are bound to pay court-fee on that amount as well" (Underlining (herein ) emphasised). It is this passage that is characterised by the learned counsel for the appellant as obiter and as a precedent sub silenti, that is a decision where a point has neither been raised, nor argued and consequently not binding, or at any rate not warranted on a reading of the relevant provisions of the Court-fees Act and the Land Acquisition Act. It is not denied that Section 48 of the Court-fees Act applies, but unlike in explanation (iii) to Section 49, there is no provision in Section 48 that the interest accrued during the pendency of the suit till the date of the decree shall be made part of the subject matter of appeal. It is, however, urged by the learned Government Pleader of the Land Acquisition Act, solatium and interest form part of the compensation upon which Court-fee is payable under Section 48 which requires that Court-fee payable on the 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. It may be noted, firstly, that the section applies to memoranda of appeals against order relating to compensation under Any Act. not necessarily, confined to the Land Acquisition Act; secondly, that the appeal is against an order relating to compensation and, thirdly, Court-fee is payable on the difference between the amount awarded and the amount claimed by the appellant. The question naturally arises as to what is meant by an order relating to compensation. Whatever may be the meaning of the word "compensation" for purposes of other Acts, what we have to consider is what does compensation include for purposes of the Land Acquisition Act and what is it that is awarded thereunder, the difference between which and the amount claimed will be the subject-matter of the appeal on which court-fee is to be paid. It may be mentioned that as a consequence of the decision of their Lordships of the Privy Council in Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon, 39 Ind App 197 (PC) that inasmuch as a decree relating to awards made under the Land Acquisition Court is not a decree made in the course of its ordinary jurisdiction, no appeal lay to the Judicial Committee, Section 54 of that Act was amended providing for an appeal to the Privy Council and as a consequence sub-section (2) was added to Section 26 whereby the award passed under sub-section (1) of Section 23 was deemed to be a decree and the statement of grounds of such an award is a judgment within the meaning of Section 2 (14) of the Code of Civil Procedure 1908. It is appropriate at this stage to notice the relevant portions of Sections 23, 26 and 34 of the Land Acquisition Act, which are given below: 23(1) IN determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration. first , the market value of the land at the date of the publication of the notification under Section 4, sub-section (1): xxxxxx (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition. 26(1) Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of Section 23, and also the amount if any respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts. (2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, clause (2) and Section 2, Clause (9), respectively of the Code of Civil Procedure, 1908. 34. When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with the interest thereon at the rate of four per cent per annum from the time of so taking possession until it shall have been so paid or deposited. It will be observed that compensation to be awarded for the land acquired under the Act is the market value of the land together with damages or expenses or the loss of profits occasioned by the acquisition of the said land or property. The compensation as computed under Section 23(1) is the amount which has to be set out in the award passed out under Section 26 (1) and it is that award which is deemed to be a decree under sub-section (2) of Section 26. It may be pertinent to notice that neither solatium under sub-section (2) of Section 23, nor interest under Section 34 forms part of the award. Though in respect of solatium, the Court is enjoined in every case to award a sum of 15% on the market value of the subject-matter in consideration of the compulsory nature of the acquisition. there is no such duty on the Court to award interest on that amount, but a statutory liability is imposed on the Collector to pay the amount awarded with interest thereon from the time of taking possession until such time as it shall have been paid or deposited. We are not here concerned with the question whether solatium is part of compensation within the meaning of Section 48 of the Court-fees Act, because that question is neither argued, nor pressed upon us inasmuch as Court-fee has already been paid thereon. The only question is whether the order "relating to compensation" under the Act includes interest.;