KOKJE, ACTG. C. J. - (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. " Much would depend on the interpretation of words "the difference between the amount awarded and the amount claimed by the appellant. " Whether the aforesaid words relate only to the total amount awarded in lieu of the property or they will also take into account the amount awarded on the apportionment under challenge and the amount claimed on correct apportionment, according to the appellants would be the question. The relevant provisions of the Rajasthan Land Acquisition Act, 1953 are reproduced for the sake of convenience hereunder- "s. 18 (1) The State Government on whose behalf acquisition is being made or any person interested who has not accepted the award or the amendment thereof may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court whether his objection be to the measurement of the land, the amount of the compensation, the amount of the costs allowed, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. " S. 30. Dispute as to apportionment.-When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. " S. 54. Appeal in proceedings before Courts.-Subject to the provisions of the Code applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enanctment for the time be-ing in force, an appeal shall only lie in any proceedings under this Act to the High Court of Judicature for Rajasthan from the award of from any part of the award of the Court and any decree of the said High Court passed on such appeal as aforesaid shall be subject to further appeal in accordance with the provisions contained in Sections 109 and 110 and Order XLV of the Code. " In Hakim Martin De Silva's case (Supra), the Division Bench held that when the dispute involved in the appeal is about the apportionment of compensation and not the amount of compensation, ad valorem court-fee would not be attracted. It was observed that in effect the appellant wants a declaration that he alone was the owner of the property which had been acquired the apportionment would follow the declaration as a matter of course. Section 8 of the Court Fees Act was held to be not applicable to case of this nature because the amount awarded as compensation for the property acquired was not at all in dispute. It was further observed that when a relief of declaration that the appellant alone was the owner of the property is sought Schedule II Article 17 Clause 3 would be applicable. In C. Alexander vs. State of Rajasthan (supra), the learned Single Judge of this Court took the view that ad valorem court fee was attracted in such appeals. However, this decision proceeds on concession and is directly against the earlier Division Bench. Therefore, it will have no force as a precedent.
(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. In Daryodh Singh vs. Union of India (5), a Full Bench of the Punjab High Court held that the dispute as to apportionment would be a dispute relating to compensation and being a dispute under the Land Acquisition Act where the land has been acquired for the public purpose, the Court-fee has to be computed according to the difference between the amount awarded to the appellant and the amount claimed by the appellant as provided in Section 8 of the Court-fees Act. It was further observed that the scheme of the Land Acquisition Act discloses that the Collector, the Court as well as High Court are only called upon to determine the matters pertaining to compensation. The dispute in such matters may relate to the area of the land acquired, its quality and the amount of compensation payable for it as well as the persons who are entitled to the compensation or its apportionment. Whatever from the dispute assumes, it, all the time, is a dispute relating to compensation inasmuch as when land is acquired what the owners or persons having interest in the land are entitled to, is its equivalent in money or in other words compensation. Apportionment, as divorced from compensation, has no meaning. It is the compensation money which has to be apportioned between the various persons having interest in the land acquired. It will be apparent from the definition of `persons interested' in Section 2 (b) of the Act that this expression includes all persons claiming an interest in compensation to be made on the acquisition of the land; and the definition includes a person to be interested in land if he is interested in an easement affecting the land. This is a very wide definition and that is why, the disputes as to apportionment sometimes assume considerable proportions. In Balakrishnan Nambiyar and others vs. Kanakathidathil Madhavan and Others (6), a Full Bench of the Kerala High Court also took the view that appeal against the decision of land acquisition court apportioning compensation would attract ad valorem court fee. It was observed that the word `awarded' has to be given wide and generic sense as meaning "ordered to be paid. " ;