Shri Shaikh Usman vs Special Land Acquisition Officer and Executive Engineer, Works Div. IX, ID Gogal

A.P. Lavande, J.—By this appeal, the appellant takes exception to the Judgment and the Order dated 16.03.2000 passed by the District Judge, South Goa, Margao, in Land Acquisition Case No. 63/90, by which the reference sought by the appellant has been rejected.

The State of Goa issued Notification u/s 4 of the Act, (''The Act'' for short) which was published on 11.05.1987 acquiring the lands of several persons for the public purpose. An area of 375 square metres from survey No. 100/3 and an area of 275 square meres from Survey No. 100/4 situated at Davorlim belonging to the appellant were part of the acquired land. The Land Acquisition Officer passed Award dated 31.01.1988 awarding the compensation at the rate of Rs. 15/-per square metre in respect of Survey No. 100/3 and at the rate of Rs. 10/-per square metre in respect of Survey No. 100/4.

In terms of Award by the Land Acquisition Officer the appellant alongwith one Esikal Vas is entitled to 1/6th share once in the compensation awarded. The appellant sought reference claiming the compensation at the rate of Rs. 300/-per square metre. In Land Acquisition Case No. 63/1990 the applicant had examined 3 witnesses and produced two Sale Deeds Exhs.AW.1/A and Aw.1/B and one Award Exh.Aw.1/C. The respondents did not lead any evidence. The reference Court rejected the reference. Aggrieved by the Judgment and Order the appellant has filed the present appeal.

Mr. Sudesh Usgaonkar, learned Counsel for the appellant submitted that the reference Court ought to have relied upon the two Sale Deeds Exhs. AW.1/A and AW.1/B as well as the Award and ought to have granted enhanced compensation sought for by the applicant. Mr. Usgaonkar further submitted that the reference Court has compared the share of the appellant to the lands involved in the Sale Deeds as well as the Award which ought not have been done by the reference Court and the reference Court ought to have found out if the lands forming the subject matter of the Sale Deeds and the Award were comparable to the acquired land and thereafter decided the reference on merits. According to Mr. Usgaonkar the approach of the reference Court is patently unsustainable in law. According to Mr. Usgaonkar even a co-owner of the property having a fraction of share in the property can seek reference claiming higher compensation u/s 18 of the Act. He, therefore, submitted that the impugned Judgment and Order is patently unsustainable and deserves to be quashed.

Mr. Shirodkar, learned Government Advocate supported the impugned Judgment and Award.

I have considered the submissions made by the learned Counsel for the parties and perused the records.

Perusal of the impugned Judgment discloses that the learned Judge seems to have go on the footing that there are other co-owners and the appellant has sought reference in respect of the entire property when the appellant alongwith one Esikal Vas is entitled to 1/6th share in the compensation in respect of the acquired land. Perusal of the Judgment further discloses that the reference Court has not at all discussed in detail as to whether the Sale Deed plots and the plot forming subject matter of the Award were comparable with the acquired land.

Indisputably the appellant alongwith Esikal Vas is entitled to 1/6th share in the compensation in respect of the acquired land. Perusal of the Award also discloses that the appellant and Esikal Vas were paid compensation corresponding to 1/6th share. In other words the appellant is entitled to 1/12th share of the compensation in respect of the acquired land bearing survey No. 100/3 and 100/4. This being the position I find considerable merit in the submission of the learned Counsel for the appellant that the approach of the reference Court in comparing the share of the appellant with the lands forming subject matter of the sale deeds and the Award is patently incorrect. In a case where a co-owner having a share in the property seeks higher compensation u/s 18 of the Act, the reference Court bound to decide the reference on merits and decide whether the appellant is entitled to higher compensation and in case he holds that he is entitled to higher compensation such a co-owner is entitled to his share of the higher compensation. This aspect of the matter has been clearly missed by the reference Court. Since the reference Court has not compared the sale deed lands and the land forming subject matter the Award with the acquired land, in my considered opinion it would be in the interest of justice to remand the matter to the reference Court to decide it on merits. The reference Court is expected to find out if the lands forming subject matter of the Award and the sale deeds are comparable to the acquired land and whether they can be relied upon for fixing the market rate of the acquired land.

In the result, therefore, the impugned Judgment and Award dated 16.03.2000 passed by the District Judge, South Goa in Land Acquisition Case No. 63/1990 is quashed and set aside and the matter is remanded to the District Court to decide the reference on its merits in terms of the observations made above. The reference Court shall decide the reference after hearing the parties. Since the reference is of the year 1990, the reference Court shall decide the reference expeditiously and in any case on or before 30.11.2009. The parties either personally or through Counsel shall appear before the reference Court on 25.08.2009 at 10.00 a.m.

At this stage Mr. Usgaonkar, learned Counsel appearing for the appellant has submitted that since the matter is being remanded to the reference Court the appellant is entitled to refund of Court fees in terms of Section 13 of the Court Fees Act, 1870. Placing reliance upon the provisions of Order 41 Rule 23 and Order 41 Rule 23-A CPC, Mr. Usgaonkar submitted that the appellant is entitled to refund of Court fees. Mr. Usgaonkar has relied upon the judgment of the Apex Court in the case of State of Uttar Pradesh Vs. Pt. Chandra Bhushan Misra, .

Mr. Shirodkar, learned Government Advocate also placed reliance upon the very same Judgment and submitted that the appellant is not entitled to refund of Court fees.

Section 13 of the Court Fees Act reads thus:

Refund of fee paid on memorandum of appeal.-If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in Section 35 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal:

Provided that, if in, the case of a remand in appeal, the order of remand shall not cover the whole of the subject matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject matter in respect whereof the suit has been remanded.

In terms of Section 13 if a suit is remanded in appeal, on any of the grounds mentioned in Section 315 of the Code, which corresponds to Order 41 Rule 23 for the second decision by the lower Court, the Appellate Court is bound to grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of court fee paid on the memorandum of appeal.

Even if the argument of Mr. Usgaonkar that the remand under Order 41 Rule 23A is also recovered u/s 13 of the Court Fees Act is accepted, still in my considered opinion the appellant is not entitled to the refund of Court fees since Section 13 applies only in the case of a suit. The proceeding u/s 18 of the Land Acquisition Act cannot be equated with a suit. The provisions of Section 13 of the Court Fees Act have to be strictly construed and therefore in my considered opinion even if Mr. Usgaonkar is right in contending that remand under Order 41 Rule 23A CPC is covered u/s 13 of The Court Fees Act, still appellant is not entitled to refund of Court fees. In the present case appeal arises out of award passed by the Reference Court in land acquisition case and not from a decree passed in a suit. Hence, I am of the considered opinion that the appellant is not entitled to refund of the Court fees. The ratio laid down in Chandra Bhushan Misra (supra) is not attracted in the present case since admittedly that case was arising out of a suit and not land acquisition proceeding. Hence the prayer for refund of court fees is rejected

The appeal is disposed of in aforesaid terms with no order as to costs.