Phyllasimon Lyngdoh vs Collector of East Khasi Hills, Shillong

S. K. Homchaudhuri, J.—This appeal is preferred against the award dated 30.9.88 passed by the learned Special Judicial Officer, Shillong in" LA(Ref) Case No. lb(K) / 83. The appeal is valued at Rs. 1,94,060.80 p arid .the appeal is filed with fixed court fee.

A question arises as to whether advalorem court fee is to be paid or not. The appellant in fact has filed an application contending that the land acquired having been fallen in tribal areas, so advalorem court fee is not to be paid,

We have heard Mr. S. C. Das, learned counsel for the appellantpetitioner and the learned Advocate General, Meghalaya on this point. It is not disputed that by notification No. 261IB dated 18th July, 1942, Government of India in the exercise of powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1937, made the Courtfees Act of 1870 applicable in the State portion of Khasi and Jaintia Hills with the following modifications

"For paragraph (5) of section 7, the following paragraph shall be substituted, namely

(1) Where the subject matter is land situated outside the said areas (Administered Areas)?

(2) If the land is clan land ad valorem at the rate of one rupee to everyone hundred rupee or part thereof the market value of the land as determined by the Court.

(11) If the land is raj (Communal) land a fixed Court fee of ten rupees regardless of the value of the land."

After the Independence of India, in the exercise of power conferred by section 4 of the Extra Provincial Jurisdiction Act, 1947 (Act No. XLVII of 1947), as delegated to him by the Government of India, Ministry of States Notification No. 3351B dated 3rd November, 1948 and of all other powers enabling him in that behalf and in supersession of all previous Orders on the subject existing prior to 15th August, 1947, the Governor of Asssm made the Khasi Syiemship (Application of Laws) Orders, 1949. By the said order Courtfees Act as has been made applicable by the aforesaid notification dated 16.7.1942 was adopted. Thereafter the Government of Assam adopted the Khasi Syiemship (Application of Laws) Order 1949 with modification the applicability of various enactments including Courtfees Act by the Assam Autonomous (Administration of Justice) Regulation, 1952, under the said Regulation, the Assam Autonomous (Administration of Justice) Regulation, 1952, Courtfee Act of 1870 together with all notifications, Orders, Rules etc. issued or made thereunder for the time being in force in Assam was adopted and made applicable in Khasi Syiemship Area with the following modification:

"(1) The Act shall apply in relation to Courts established or continued by the authority or the Central Government.

(2) Section IA and Chapter II shall be omitted.

(3) For paragraph V of section 7 the following paragraph shall be substituted, namely

"V. In suits for the possession of land houses and gardens

(a) Where the subject matter is land situated in the Shillong Administered Areas ad valorem according to the value of the subject matter, and such value shall be deemed to be fifteen times the net profits which have arises from the land during the year next before the date of presenting the plaint or where no such net profits have arisen therefrom shall be the amount at which the court may estimate the value of the land with reference to the value of similar land in the neighbourhood ;

(b) Where the subject matter is land situated outside the said areas ;

(i) if the land is of the clan ad valorem at the rate of one rupee for every one hundred rupee or part thereof of the market value of the land as determined by the Court ;

(ii) if the land is raj ( communal ) land a fixed fee of ten rupees regardless of the valu; of the land....."

In March, 1950 Assam Courtfees Act was passed by the Legislative Assembly as was published in tie Assam Gazette on 3Jth March, 1950. The said Courtfees Amendment Act was extended to the Tribal PartA of the 6th Schedule of the Constitution of India (Autonomous Districts) by Government Notification.

From the above provisions of Khasi Syismship (Application of Laws) Orders, 1949, as adopted and modified by the Assam (Administration of Justice) Regulation Act, 1952, it is clear that the Courtfees Act applies in the Khasi Syiemship Areas in the erstwhile Khasi and Jaintia Hills District in relation to Courts established and continued by the authority of the Central Government with the exception mentioned therein. The appeal ii for enhancement of compensation for acquisition of land falling within tribal areas. This first appeal is against an award but in fact it is an appeal for money decree. The subject matter, of appeal does not fall within the ambit of the ex option where advert n court fee doss not apply but fixed court fee applies. As such, we hold that Courtfees Act is applicable in the appeal arising out of award passed by Special Judicial Officer in a Reference under section 18 or section 30 of the Land Acquisition Act, 1894. We are not inclined to accept the contention of the appellant that since the acquired land falls in the tribal areas, the appellant is not required to pay ad valorem court fee but fixed courtfee of Rs. 11/. In an appeal against an award made in a reference either under section 18 or under section 3J of the Land;. Acquisition Act, 1894, advalorem Court fee is also to be paid by an applicant, even if the acquired land falls within the tribal areas in the Khasi Hills and Jaintia Hills of Meghalaya (erstwhile Khasi& Jaintia Hills District of Assam).

The application of the appellant is therefore rejected. The appellant is granted 3 months time to pay the advalorem court fees.