Full Judgment
M.C. Jain, J.
1. In these two Civil Misc. Appeals the Office has raised an objection that the appellant head opt affixed the court fees Under Section 46 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (for short 'the Act' here in after). The appeals have been presented on a court fee stamps of Rs. 10/- only whereas Under Section 46 of the Act fee is required to be paid on the difference between the amount awarded and the amount claimed by the appellant.
2. Mr. S.L. Jain, learned Counsel for the appellants submitted that on a reference made to the Civil Judge, Pali, by the Collector, Pali, the Civil Judge has awarded compensation to the tune of Rs. 200/- per bigha agreeing with the Land Acquisition Officer and has stated that the claimants are not entitled to compensation at the rate of Rs. 3,000/- per bigha. Similarly in respect of the claims on other heads the Civil Judge found that the claimants are not entitled to the amount claimed and whatever amount has been awarded by the Land Acquisition Officer is sufficient. It would appear from the judgment of the learned Civil Judge that he agreed with what has been awarded by the Land Acquisition Officer and claims were not allowed. Against this judgment or decision of the learned Civil Judge, Pali, these appeals have been preferred.
3. The contention of Mr. S.L. Jain is that the judgment of the order appealed against are not decrees so the appellants are not liable to pay ad valorem court free on the amount claimed by them. As to what amount of court fee is payable on such appeals, Mr. Jain submitted that the matter is covered under Schedule II, Article 3 and a fixed court of Rs. 10/- is payable on such appeals. The appeals are directed against orders which are covered under Schedule II, Article 3. He tried to support his contention by placing reliance on a Full Bench decision of the Madhya Pradesh High Court in Shantilal Songanmal and Ors. v. Town Improvement Trust : AIR 1978 MP8 . In the Full Bench decision of the Madhya Pradesh High Court the appeal was Under Section 147 of the M.P. Town Improvement Trust Act, 1960. When the matter was placed before a learned Single Judge, the question arose as to whether the court fee paid on the appeal was adequate. Court-fee of Rs. 30/- was paid and not ad valorem court fee. In an earlier decision of that court in Suresh Kumar v. Town Improvement Trust AIR 1975 MP 199 Raina, J. held that on such appeal ad valorem court-fee is payable on the difference between the compensation claimed and the compensation awarded. The Full Bench over ruled this earlier decision placing reliance on a decision of the Supreme Court in Diwan Brothers v. Central Bank of India, Bombay AIR 1976 SC 1603. It appears that the Full Bench decision has completely turned the aforesaid Supreme Court decision. These observations from that decisions have been extracted that 'the term 'decree' used in Schedule II, Article 11 of the Court fees Act is referable to a decree as defined in Section 2(2) of the Civil PC. The decision of the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act either allowing a claim or rejecting a claim, though described as a decree in the Act, does not make it a decree within the meaning of the Court-Fees Act. The decision not fulfil the requirements of a decree within the meaning of Schedule II, Article 11 of the Court-Fees Act. Therefore, the memorandum of appeal filed by a person aggrieved by the decision of the Tribunal squarely falls within the ambit of Schedule II, Article 11 of the Court-Fees Act and ad valorem court-fees under Schedule. I, Article 1 are not payable.
4. The Full Bench in vie of the aforesaid observations held that the appeal Under Section 147 of the M.P. Town Improvement Trust Act following a decision given Under Section 78 of the same Act ad valorem court-fees on the difference between the amount claimed and the amount awarded is not required to be paid. The court-fees payable on such appeals will be under Article 11 in Schedule II of the Court-Fees Act. It may be mentioned that Section 8 of the Central Court Fees Act 1870 although has been referred in the judgment but its impact has not been considered. In Diwan Brother's case the Supreme Court has not considered the provisions contained in Section 8 of the Central Court Fees Act, 1970. That was a case considering the nature of the decision given by the Tribunal constituted under the Displaced Persons (Debte Adjustment) Act. In my opinion, the Full Bench decision of the Madhya Pradesh High Court cannot be pressed into service in the present appeals.
5. So far as the present appeals are concerned, we have to read Section 46 as well as Schedule II, Article 3 which are as under:
Section 46. Fee an memorandum of appeals 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.
Schedule II, Article 3--Memorandum of appeal from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) and not otherwise provided for when presented
(i) ...
(ii) ...
(iii) to the High Court from an order
(1) Where the order was passed by a subordinate Court or other authority
(a) if the order relates to a suit or proceeding, the value of which exceeds one thousand rupees Ten rupees
(b) in any other case Five rupees
6. It may be stated that Section 48 is a specific provision providing for fees on memorandum of appeals against orders relating to compensation. If any compensation is awarded under any Act and an appeal is preferred against such an order, Section 46 lays down that the fees shall be computed on the difference between the amount awarded and the amount claimed by the appellants. In the fact of this specific provision, in my opinion, Article 3 of Schedule II will have no application Even under Article 3 of Schedule II an exception has been made for those orders for which provisions are clearly there in the Act. Where nothing is provided in respect of any orders, then Article 3 of Schedule II would be attracted. But for orders otherwise provided for in the Act, Article 3 of Schedule II will have no application. The words 'not otherwise provided for' exclude the applicability of Article 3 as orders relating to compensation are specifically provided for in Section 46.
7. I reed not go into the question as to whether the decision or the judgment of the Civil Judge amounts to a decree or not The matter is being examined treating them to be orders as the word 'order' has been used in Article 3, Schedule II, as well as Section 46 of the Act. In Section 26 of the Rajasthan Land Acquisition Act there is a specific provision that away every shall be deemed to be a decree and the statement of reasons of every such award is a judgment within the meaning of Section 2(2) and Section 2(9) respectively of the Code of Civil Procedure. For purposes of court-fee how far the provision of Section 26(2) has to be taken into consideration, is a question which requires an independent examination. As that question does not arise here for consideration I decline here to make any comments. But so far as the present appeals are concerned I am clearly of the opinion that Section 46 which is a specific provision will govern the question of court-fees and in accordance with Section 46 ad valorem court-fee has to be paid on the difference between the amount claimed and the amount awarded.
8. Admittedly in the present appeals court fee has not been paid ad valorem and a fixed court fee has been paid which in my opinion, is insufficient as considered above. The appellants are required to pay ad valorem court-fee in accordance with Section 46 of the Act.
9. Counsel for the appellants pray for two months time for filing the deficit court fees. In the interest of justice one month time is allowed for payment of court-fees.