In these three matters the question to be decided is whether the enhanced court fees under the Kerala Court Fees and Suits Valuation (Amendment) Ordinance, 2002 (hereinafter referred to as "Ordinance") is applicable to appeals filed from land acquisition references made before the date of the Ordinance. The appellants calculated court fee on the basis of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960) (hereinafter referred to as "The Act") as existing before the Ordinance even though appeals were filed after the Ordinance, which amended the Act enhancing court fees. The Registry raised objections and the matter came before us for consideration. Since the matter relates to the court fees, we have directed the appellants to give notice to the Advocate General and we have heard the Government Pleader in this aspect in detail. It is the contention of the appellants that right of appeal is a substantive right and the above substantive right cannot be impaired or imperiled by putting a new restriction thereon or imposing more onerous condition. Imposition of higher court fee on the basis of amended provision impairs or imperils the substantive right of appeal. Therefore, the appellants are liable to pay court fee only on the basis of unammended provision.

2. Learned Government Pleader mainly relied on a Division Bench decision of this Court in Kochappu v. Somasundaran Chettiar (1991 (1) KLT 657). When the Court Fees Act was amended in 1960, the question came up and the Division Bench of this Court decided that in appeals filed after 05.12.1990 the Court fee payable is to be calculated only on the basis of the new schedule brought into force along with the promulgation of the Ordinance. But in that case, the court fee payable was reduced by the Ordinance and Amended Act and the Division Bench held that by reducing the court fee the right of appeal is not imperiled or impaired by the imposition of a more onerous condition. What has been conferred under the new enactment is only an additional benefit or advantage to the litigant public. In such a situation, a statute which is otherwise procedural in character does not get transmuted to a substantial law. The matter is now governed by the decision of the Supreme Court in State of Bombay v. M/s Supreme General Films Exchange Ltd. (AIR 1960 SC 980). There in paragraph 12 the Supreme Court held as follows:

"12. An impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment."

The Court referred to its earlier decision in Hoosein Kasam Dada (India Ltd. V. State of Madhya Pradesh (AIR 1953 SC 221) and in Garikapatti Veeraya v. N. Subbiah Choudhury (AIR 1957 SC 540).

3. A Division Bench of this Court in Usha v. Food Corporation of India (1997 (1) KLT 264) explained the decision reported in 1991 (1) KLT 657 (supra) and following the decision in AIR 1960 SC 980 (supra) reiterated that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only and it impairs or imperils a substantive right. So, unless the Act is specifically made retrospective, the right of appeal is imperiled by the enhancement of court fee. Therefore, the appellant is liable to pay court fee only on the basis of unammended provision as existing on the date of filing of the suit. Admittedly, Ordinance is not retrospective. Section 1 sub-section (2) says that it shall come into force at once. Learned Government Pleader argued that the decisions of the Supreme Court as well as the decisions of this Court referred to earlier relate to civil suits, but in land acquisition appeals, a different approach has to be taken as no court fee is payable before the Reference Court like paying of court