Counsel's fee in land acquisition cases is to be assessed on the basis of the value of the property involved like all other cases or suits filed for the recovery of specific amounts.

I.S.TIWANA, J.

1. The short but significant question of law that needs to be considered by this Bench on a reference is as follows :

"How and in what manner a counsel s fee is to be assessed or quantified in the memo of costs while preparing a High Court decree in land acquisition matters in terms of Rule 7 (ii), Chapter 4-H, Volume V of the High Court Rules and Orders?"

It arises on the following facts :-

In Regular First Appeal No. 148 of 1980, filed by the Union Territory of Chandigarh against the award of the Land Acquisition Court on a reference under Section 18 of the Land Acquisition Act (hereinafter referred to as the Act), the cross-objections filed by the petitioners were allowed by this Court on November 24, 1980, with proportionate costs. At the time of calculating the costs, the office, in accordance with the prevalent practice, put up the papers to the Judge to elicit his orders with regard to the quantum of counsel s fee. The learned counsel for claimant-petitioners then filed this miscellaneous petition raising an objection to this procedure being adopted and challenging it on various grounds.

2 The practice that is prevalent in this Court in this regard is that when a Regular First Appeal under the Act is decided by a learned single Judge, the case goes back to the Branch for the preparation of the memo of costs. While preparing the memo of costs, the Office submits the case to the learned Judge soliciting his orders with regard to the quantum of the counsel s fee to be added. This procedure is adopted in spite of the fact that the counsel has put in his fee certificate on the Court file. The fee so specified by the learned Judge is then added as counsel s fee in the memo of costs.

3. We are told that this procedure is adopted in view of Rule 8 of Chapter 6-I of Volume V of the High Court Rules and Orders as the proceedings in the land acquisition matters are treated as miscellaneous proceedings.

4. The stand of the counsel for the claimants is that the Regular First Appeals or the cross-objections to the same in land acquisition cases cannot possibly be treated as miscellaneous proceedings for purposes of preparing the memo of costs. Rather, according to the learned counsel, these cases have to be treated as suits for recovery of specific property and the counsel s fee has to be assessed or determined on the basis of the value of the property involved like all other cases or suits filed for the recovery of specific amounts. His stand further is that once the Court has passed orders in an appeal or the cross-objections to the same, allowing it with costs or proportionate costs, then the matter has not to be referred to the Judge for the determination of the quantum of the counsel s fee in the absence of the party or his counsel. To support his above noted contention, the learned counsel adopts this process of reasoning.

5. According to sub-section (2) of Section 26 of the Act, which sub-section was brought in by way of amendment by Section 2 of the Land Acquisition (Amendment) Act XIX of 1921, every award given by the Land Acquisition Court has to be deemed to be a decree and the statement of grounds of every such award a judgment within the meaning of Section 2, Clauses (2) and (9), respectively, of the Code of Civil Procedure. An appeal against such an award or a part thereof lies to the High Court and further against the decree of the High Court is maintainable in the Supreme Court. Therefore, according to the learned counsel, it follows that a decision of the High Court on appeal from a judgment and decree is also a judgment and decree. It is on the basis of this legal position that an appeal against the award of the Land Acquisition Court is treated as a Regular First Appeal for purposes of court-fee and limitation et cetera and a Letters Patent Appeal is maintainable before a Division Bench against the decree passed by the learned single Judge. It is also pointed out that in view of the provision