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2007 Supreme(Kar) 651
2008 (2) KLO 1210 (DB)
IN THE HIGH COURT OF KARNATAKA
S.R. Bannurmath and A.N. Venugopal Gowda,JJ.,
M.F.A. No. 5408/2007 (LAC)
Dr. Subashchandra Kaluburgi - Appellant
Vs.
Asst. Commissioner and Special Land Acquisition Officer, Gulbarga - Respondent
Decided on 01-10-2007
Appellant: Srivaishanvi Law Assts., Advs.
Headnote:(A) Karnataka Court Fees and Suits Valuation Act, 1958 - Section 48, Schedule I, Article 1 - Applicability - Land acquisition proceedings - Appellant fraudulently obtaining award - High Court holding to that effect and remitting matter to Reference Court - Reference Court holding that appellant is not entitled to compensation - Appeal against order of - Court fee payable - As entitlement is the question to be determined, section and Article are applicable - Court fee has to be paid on entire amount claimed.
Held : In essence, the claim of the appellant in the matter is that, he is entitled to payment of compensation in respect of the said lands, shown for acquisition under the said notification. According to the judgment and award passed by the Reference Court, rendered pursuant to the remand order and directions issued by this Court, which has been challenged in this appeal and which the appellant is seeking to set aside, is to the effect that, he is not entitled to any compensation and whatever amount has been ordered to be paid to the appellant and received by the appellant, has been ordered to be recovered from him with interest. Hence the value of the appeal is the entire amount of compensation awarded by the Land Acquisition Officer in respect of the aforesaid lands.
The appeal herein is against the judgment and award of the Reference Court holding that, the appellant is not entitled to any compensation and the amount which he has already received should be refunded/recovered with interest. This in effect, it is the right of the appellant to claim compensation which is required to be adjudicated in this appeal. In such a situation, in our view, it is Section 48 read with Schedule I, Article 1 of the Act, which has to be applied to determine the Court fee payable on the appeal. In our view, Section 48 applies not only to the appeals in which the correctness of the amount determined is challenged, but also the appeals which concerns the question of title. The provisions of Section 48 applies even to appeals, wherein the challenge is to the award made by the Reference Court holding that the claimant is not entitled to any compensation at all and the claim of the appellant as to claim and receive the compensation, has been negatived. The Reference Court has held that the appellant is not entitled to any compensation and has also ordered to recover the amount already released/paid. Hence, the appellant will have to pay the Court fee on the entire amount claimed by him as compensation in the land acquisition proceedings, as the issue that required to be adjudicated in this appeal is the right to payment of compensation to the appellant. (Para 7 & 8)
(B) Land Acquisition Act 1894 - Section 54 - Court fee payable on memorandum of appeal - Title of claimant in question - Court fee has to be paid on entire amount claimed.
Result: Dismissed
A.N. Venugopal Gowda, J.,
This appeal is directed against the common judgment and award of the I Additional Civil Judge (Senior Division) at Gulbarga (“Reference Court” for short), dated 28-2-2007, passed in LAC Nos. 468 and 469 of 1994.
2. The appellant has paid the Court fee of Rs.15/- under Article 3(iii)(1)(a) of Schedule II of the Karnataka Court Fees and Suits Valuation Act, 1958 (“the Act for short). The office has raised objection regarding the insufficiency of Court fee paid. According to the office objection, the Court fee has to be paid under Section 48 read with Article 1 of Schedule I of the Act. The appellant has submitted before the office that, the matter involved in the appeal being limited to the rejection of reference by the Court and the appeal being not for seeking any enhancement of compensation, Section 48 has no application. On the said objection, the matter is listed for hearing.
3. The learned Counsel for the appellant contended that the reference made under Section 18 of the Land Acquisition Act, 1894 (“L.A. Act” for short), to the Reference Court having been rejected by the impugned judgment and award and no enhancement of compensation having been claimed in the appeal, the valuation made and Court fee pad as above, as correct. The learned Counsel relied upon the order passed by this Court in the case of Special Land Acquisition Officer vs. S.M. Gajendran alias S.M. Ganjedra Babu reported in 2001(7) Kar. L.J. 254 (DB) : ILR 2001 Kar. 2404 (DB) and in the case of Executive Engineer, Karnataka Housing Board Division, Belgaum vs. Babu Krishna Waskar and Others reported in 1996(2) Kar. L.J.93 (DB) : ILR 1996 Kar. 1095 (DB). The learned Counsel contends that the office objections as untenable, seeks ov erruling of the same and to entertain the appeal on the basis of the Court fee paid.
4. The brief facts of the case as could be seen from the record of the appeal memo are:
The lands bearing Sy.No.51/2 measuring 1 acre 25 guntas, 53/2 measuring 2 acres and 53/1-B measuring 0.08 gunta, situated at Saradgi (B) Village of Taluk and District Gulbarga, were shown as required for acquisition, for the purpose of formation of road of Bidar-Srirangapatna. Notification under Section 4(1) of the L.A. Act was issued on 18-1-1993 and Section 6(1) notification was issued on 28-6-1994. To determine the proper compensation, the appellant had sought for a reference to the Civil Court under Section 18 of the L.A. Act. The Reference Court had passed 1997 in the Court of the Principal District Judge, Gulbarga, Cross appeals were also filed, which were dismissed by common judgment dated 24-9-1999. The same were subsequently questioned in M.F.A Nos. 1536 and 1723 of 1997 in this Court Cross appeals were also filed. The appeals filed by the State were dismissed and the Cross appeals filed by the appellant were allowed. Subsequently, Review Petition Nos. 28 of 1999 and 95 2000 were filed by the State to review the judgment and award passed in M.F.A. No. 1723 of 1997 connected with Cross Appeal No. 1 of 1997 and M.F.A. No. 1536 of 1997, dated 30-9-1999. The review petitions were disposed of by this Court by an order dated 23-3-2001. The order is in the case of Assistant Commissioner and Land Acquisition Officer, Gulbarga vs. Subashchandra reported in 2001(7) Kar. L.J. 467 : ILR 2001 Kar. 3532. The operative portion of the said order reads as follows:-
“17. Suffice it to say, that the judgments of the Reference Court and this Court as obtained by playing fraud by suppressing the truth, but the Court of justice cannot allow this fraud to continue and sustain. Therefore, the orders passed by the Reference Court in L.A.C. Nos. 468 of 1994 on the file of the Additional Civil Judge, Gulbarga and the judgments passed by this Court in M.F.A. Nos. 1536 and 1723 of 1997 connected with Cross Appeal No. 1 of 1997 are set aside. The judgment rendered in M.F.A. Nos. 1536 and 1723 of 1997 connected with Cross Appeal No.1 of 1997 are recall
