ORDER ON COURT FEE
1. This appeal is filed against the judgment and award dated 10-2-2000, passed by the Principal Civil Judge (Sr. Dn.), Bangalore Rural District, Bangalore in LAC No. 7 of 1998. The claimants in the said proceedings were owners of certain lands acquired under preliminary and final notifications issue under Section 28(1) and 28(4) of the Karnataka Industrial Areas Development Act, 1966 (for short, ‘KIAD Act’). The respondent in the said Reference Proceedings [LAC 7 of 1998] was ‘State, by Land Acquisition Officer, KIADB’.
2. The Land Acquisition Officer has fixed the market value of the land at Rs. 70,000.00 per acre. The Reference Court had fixed the market value of the land as Rs. 3.40 lakhs per acre. Feeling aggrieved, this appeal has been filed by the “Special Land Acquisition Officer, Karnataka Industrial Areas Development Board”.
3. The appellant has not paid any Court fee on the appeal. The appellant contends that no Court fee is payable on two grounds. The first is that Section 48 requires payment of ad valorem Court fee only where the appeal is by the claimant and not by the beneficiary of acquisition, having regard to the decision of this Court in Executive Engineer, Karnataka Housing Board Division, Belgaum v Babu Krishna Waskar. The second is that the Special Land Acquisition Officer, being an officer of the State Government, any appeal filed by him is exempt from Court fee under the second proviso to Section 4 of the Karnataka Court Fees and Suits Valuation Act, 1958, having regard to the order on Court fee dated 13-6-1985 in the Special Land Acquisition Officer, KIADB, Mysore v Venkatappa.
Re. First contention:
4. Section 48 of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, ‘Court Fees Act’), requires payment of ad valorem Court fee on appeals against judgments and awards of the Reference Court, relating to compensation. The relevant portion of the Section 48 reads as follows, before amendment of Act No. 15 of 1998: _____
Fee on memorandum of appeal against decision, award or order relating to compensation
“The fee payable under this Act on a memorandum of appeal against a decision or an award or order relating to compensation under any Act for the time being in force for the acquisition of property for public purpose shall be computed on the difference between the amount awarded and the amount claimed by the applicant”.
The said section was amended by Act No. 15 of 1998 with effect from 28-5-1998, by substituting the word ‘appellant’ for ‘applicant’. After amendment, Section 48 presently reads as under:
“The fee payable under this Act is memorandum of appeal against a decision or an award or order relating to compensation under any Act for the time being in force for the acquisition of property for public purpose shall be computed on the difference between the amount awarded and the amount claimed by the appellant”.
5. In Indore Development Authority v Tarak Singh and Others, the contention of the beneficiary who filed an appeal challenging the increase in compensation by the Reference Court was that it was not liable to pay ad valorem Court fee under Section 8 of the Court Fees Act, 1970. It contended that it was liable to pay only a fixed Court fee of Rs. 7.50 under Article 11 of Schedule II relating to “Appeals which are not from decrees or orders having the force of decrees”. The Supreme Court, interpreting Section 8 of the Court Fees Act, 1870 rejected the contention that only a claimant seeking higher compensation has to pay ad valorem Court fee and not a beneficiary of the acquisition challenging the increase in compensation by the Reference Court. The Supreme Court held:
“In that context, it is relevant to note Section 8 of the Madhya
Pradesh Court Fees Act which reads thus:
Fee on memo of appeal against order relating to compensation:
The amount of fee payable under this Act on a memo or appeal against any order relating to compensation under any Act for the time being in force for the acquisition of land for public purpose shall be computed according to the difference between the amount awarded and the amount claimed by the appellant.
It is true that the appellant is not the claimant. But, when the appellant seeks to avoid the decree, which is made by the Reference Court, it must be construed that the appellant is seeking to avoid the amount of higher compensation determined by the Reference Court, as claimed by the landowners. Therefore, the appellant is required to pay the Court fee on the memorandum of appeal to the extent on which the appellant seeks to avoid the higher compensation awarded by the Reference Court under the
Central Act. When its legality is challenged by filing the appeal under Section 54, the difference of the amount for which appeal is filed, ad valorem Court fee under Section 8 is required to be paid. Article 11 of Schedule II has no application, since it is expressly covered by Section 8 of the Madhya Pradesh Court Fees Act”.
Section 48 of the Karnataka Court Fees Act (as amended by Act 15 of 1998) is the same as Section 8 of the Court Fees Act considered by the Supreme Court. Thus the matter is directly covered by the decision of Supreme Court in Indore Development Authority’s case, supra, and therefore any beneficiary who files an appeal challenging the increase in compensation by the judgment and award of the Reference Court will have to pay ad valorem Court fee on the amount which it seeks to avoid, under Section 48 of the Karnataka Court Fees Act.
6. It is of relevance to note that the unamended Section 48 came up for consideration before a Division Bench of this Court in Executive Engineer, Karnataka Housing Board’s case, supra. This Court held that ad valorem Court fee is payable under Section 48 only where the applicant under Section 18 of the Land Acquisition Act, 1894 (that is the claimant) is the appellant and not otherwise. This Court distinguished the decision of the Supreme Court in Indore Development Authority’s case, supra, on the ground that the wording of Section 8 of Court Fees Act, 1870 (as applicable to Madhya Pradesh) contemplated payment of ad valorem Court fee in a appeal challenging an award by the Reference Court either by the claimant or by a beneficiary, but the wording of Section 48 of the Karnataka Court Fees Act was different and therefore ad valorem Court fee was payable only where the appeal was by the claimant. This Court also observed that it may be necessary for the Legislature to bring in suitable amendment to the Court Fees Act, providing for payment of Court fee on the memoranda of appeal filed by a beneficiary also. The Legislature apparently took note of the said suggestion and the Karnataka Court Fees Act has been amended by Act No. 15 of 1998, substituting the word ‘applicant’ by ‘appellant’. The amendment came into effect on 28-5-1998. After amendment, Section 48 is similar to Section 8 of the Court Fees Act, 1870 considered by the Supreme Court in the case of Indore Development Authority, supra. Thus as held in by the Supreme Court, ad valorem Court fee is payable even on appeals filed by beneficiaries, on the extent of challenge.
Re: Second contention:
7. The appellant contends that this appeal is not filed by a beneficiary but filed by the Special Land Acquisition Officer, who is an officer of State Government. He relied on the second proviso to Section 4 of the Karnataka Court Fees Act, which reads as follows:
“Provided further that no fee shall be payable in respect of any document filed, exhibited or recorded by or on behalf of the State Government or any officer of the State Government in his official capacity or acted on at the instance of or furnished to the State
Government or any officer of the State Government in his official capacity”.
(emphasis supplied)
The appellant contends that this Court, relying on second proviso to Section 4 has already held that appeals by Special Land Acquisition Officer, KIADB were exempted from Court fee. He relied on an order on Court fee dated 13-6-1985 passed by a Division Bench of this Court in Special Land Acquisition Officer’s case, supra, in this behalf. The said order is extracted below:
“This is an appeal by the Special Land Acquisition Officer, Karnataka Industrial Areas Development Board, Mysore. The question is whether the memorandum of appeal falls within, and attracts, the proviso to Section 4 exempting documents filed on behalf of the State Government or any officer of the State in his official capacity. Cognate question is whether the acquisition to which the appeal relates is by the Government in which case the said proviso is attracted or is by the Board constituted under the Karnataka Industrial Areas Development Act, 1966 in which case the proviso is not attracted.
The Scheme of Section 28 of the Act, unlike that of the analogous provisions of the Bangalore Development Authority Act, 1976, suggests that the acquisition is initiated if in the opinion of the State Government any land is required for the purpose of development by the Board or for any other purpose in furtherance of the objections of the Act. The State Government may, by notification, give notice of its intention to acquire such land. The provisions of Section 28 clearly point to the acquisition being made by the Government itself. Both the notifications under sub-sections (1) and (4) of Section 28 are issued by or at the instance of the Government. Provisions of sub-section (8) are indeed clinching. They provide that where land has been acquired for the Board, the State Government may, after it has taken possession of land pursuant to the acquisition, transfer the land to the Board. Up to the point of taking of possession, the proceedings are at the instance of the Government. The appeal is by the LAO who, though attached to the Board, nevertheless exerts power as an officer of the State Government in his official capacity.
We, therefore, overrule the office objections regarding Court fee to be paid and uphold the contention of the appellant’s learned Counsel that no Court fee is payable on the memorandum of appeal”.
8. This Court did not consider, nor hold that a beneficiary challenging an appeal need not pay ad valorem Court fee. In fact Section 48 was not considered by this Court. This Court merely held that where the appeal is by the Acquiring Authority, no Court fee will be payable having regard to the second proviso to Section 4, if the Acquiring Authority was the State Government. In the case relied on, this Court held that the
acquisition was by the State Government and the appeal was also by the Land Acquisition Officer acting on behalf of the State Government. This Court specifically held that LAO who filed the appeal, “exerted power as an officer of the State Government in his official capacity”.
9. In this case the Acquiring Authority, who has been impleaded as respondent before the Reference Court is “State, by Land Acquisition Officer, KIADB”. But, the appeal is not by “State, represented by LAO, KIADB”, but by “Special Land Acquisition Officer, KIADB”. In this case the acquisition is by State. But, the appeal is not by the State Government or by the Land Acquisition Officer acting on behalf of the State Government or acting at the instance of the State Government. This appeal is filed by the Special LAO on behalf of KIADB. The KIADB Cadre and Recruitment Regulations show that “Special Land Acquisition Officer, KIADB” is a post under KIADB and it is filled by deputation from the Revenue Department of the State Government. “The Special Land Acquisition Officer, KIADB”, the appellant in this appeal, is therefore an officer of KIADB acting for and on behalf of KIADB which is the beneficiary. It is not disputed that the decision to file this appeal and the act of filing the appeal is that of KIADB and not the State Government. As this appeal is not by an officer of the State Government, acting as an Officer of the State Government, or at the instance of or under instructions from the State Government, second proviso to Section 4 will not apply.
10. If this appeal had been filed by the ‘State of Karnataka, represented by Land Acquisition Officer, KIADB’, the respondent in LAC No. 7 of 1998, on the instructions of State Government it might have been possible to contend that the appeal is by the State Government. But the State Government which is the respondent in the LAC No. 7 of 1998 is not the appellant in this appeal. It is relevant to notice here that when the State Government wants to file an appeal, then it follows the procedure prescribed in the Karnataka Conduct of Government Litigation Rules, 1985, which regulates the manner in which appeals by State Government will have to be filed. The learned Additional Government Advocate submitted that State Government has not filed this appeal.
11. Therefore, the appellant is liable to pay Court fee ad valorem under Section 48 of the Karnataka Court Fees Act.
12. At this stage, the learned Counsel for the appellant seeks four weeks time to take remedial steps or to pay the Court fee. Four weeks time is granted as sought.
13. The Registry of the High Court is directed to take note of the above observations regarding the need for payment of ad valorem Court fee under Section 48 of Karnataka Court Fees Act, by beneficiaries of acquisition, when they file appeals challenging the increase in compensation awarded by the Reference Court.
