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1993 (9) TMI 364

a, Govt. Adv. JUDGMENT M. Ramakrishna, J. 1. The appellant who was the owner of land in R.S.No. 1627/2A to an extent of 2 acres 2.7 guntas situated in Athani, Belgaum District, being aggrieved by the judgment and award dated 5.9.1988 made by the learned Civil Judge, Athani, has approached this Court in this Appeal seeking higher compensation for the land acquired. 2. We have heard the learned Counsel on both sides. 3. The undisputed facts as disclosed by the judgment under Appeal are that by a Preliminary Notification dated 27.10.1975 published on 6th November, 1975, the land in question came to be acquired for a public purpose, to wit, construction of Government Quarters for Judicial Department. The Land Acquisition Officer awarded compensation in a sum of ₹ 1,500/- per acre by his award dated 28.8.1981. Not being satisfied with the award, the appellant filed an application under Section 18 of the Land Acquisition Act, 1894 (the Act for short) for reference of the matter to the Civil Court for determination. The learned Civil Judge on receipt of the reference application held an enquiry and proceeded to award compensation in a sum of ₹ 40,000/- per acre. This award was .....

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the point sought to be made out, the learned Counsel for the appellant relied on the following Decisions to contend that agricultural land with potential for non-agricultural use should be valued accordingly and not a mere agricultural land:- Saraswathi Sundaram v. Asst. Commissioner & LAO; Bangalore Collector of Raibagh v. Dr. Harising Thakur and Anr., [1979]2SCR183 He also relied on the Decision of the Supreme Court in Mehta RAVINDRA RAI AJITRAI, DECEASED BY L.R. and Ors. v. STATE OF GUJARAT AIR 1969 SC 2051 to contend that distress sale shall not be the basis for fixing market value and that Ex.R1 related to distress sale. 7. At the out-set, it is seen that the land in question is said to be acquired for construction of Government Quarters for the Judicial Department. Secondly, it is not in dispute that the land is situated within the Municipal limits of Athani and close to the Inspection Bungalow of Athani Town where a combined Court of Munsiff & J.M.F.C., is functioning. Nextly, in the course of the discussion of the evidence on record, the learned Civil Judge has observed that there is no acceptable evidence to hold that as on the date of the preliminary notification .....

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ge increase in price of land per year at 8% in a place like Athani and thus 40% has to be deducted to arrive at the market value in the year 1975. On such deduction of 40% out of ₹ 25,590/-, the market value in 1975 will work out to ₹ 15,356/-. This we can round off to ₹ 15,000/- 10. Therefore, applying the hypothetical layout method which the Court below has rightly adopted, we cannot go beyond ₹ 15,000/-per acre. As Ex.R-1 disclosed the transaction relating to an agricultural land (Sy.No. 1627/2B) said to have been sold by the Government of Karnataka for not having paid the land revenue as observed in the course of the award of the Land Acquisition Officer, we cannot adopt the valuation found in Ex.R-1 being in the nature of a distress sale. This is another reason for interference by this Court in the award in question. 11. Thus viewed from these circumstances and considering the submissions made by the learned Counsel for the appellant, we are of the view that the proper valuation to the land in the instant case would be ₹ 15,000/- per acre instead of ₹ 4,500/- per acre awarded by the Reference Court. 12. At this stage, the question that arise .....

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s called on for hearing, the Court shall order the plaintiff or any person added as a co-plaintiff to the suit to pay the Court fee and in case of abandonment of part of the claim the proportionate court-fee which would have been payable by the plaintiff if he had not been permitted to sue as pauper. (2) In cases where the plaintiff is dispaupered the court may, instead of proceeding under Sub-rule (1), order the plaintiff to pay the requisite court fee within a time to be fixed by it and in default dismiss the suit and make an order for the payment of court fee as in Sub-rule (1)." 15. By a careful consideration of the language employed in Sub-rules (1) and (2), it is abundantly clear that once the plaintiff who was held to be an indigent person for the purpose of filing the suit without paying Court fee and who succeeded in the suit, either partly or fully, is thereby considered as dispaupered, he is liable to pay the requisite Court fee provided in the Act as if he had not been permitted to sue as an indigent person. Therefore, the first contention of the appellant that having been permitted to file the appeal as an indigent person, she is not liable to pay any Court fee, e .....

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n, has to be presumed as only prospective and not retrospective. The amendment in question amending Article-1- therein and coming into force at once from the date of receiving the assent of the Governor on 28.1.1993 is only prospective and not retrospective. 20. Now we proceed to consider whether the Court has discretion in the matter of directing payment of Court fee by either party to the proceedings. On this point, Sri Kothavale relies upon Rule 10 of Order 33 which reads:- "Rule 10. Costs where an indigent person succeeds.- Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit." By a careful consideration of the language employed in the above Rule, it is true that there is discretion vested in the Court to order any party to the suit to pay the Court fee. But under what circumstances the Court could exercise such discretion to do so is another question. Wheth .....

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tate of Karnataka to Rule 11 by inserting Sub-rules (1) to (3), the Court will have to consider the object behind the amendment, it being protection of revenue. By a perusal of Sub-rule (2) of Rule 11, it is clear that in cases where plaintiff is dispaupered, the Court may instead of proceeding under Sub-rule (1), order the plaintiff to pay the requisite court-fee........ Provisions of Rule 11 of Order 33 are mandatory and the Court must take provision in the decree for payment of Court fee by plaintiff to the State Government (vide Smt. KALAWATI DEVI v. CHANDRA PRAKASH, AIR1959All37 ; STATE OF BIHAR v. SHEO KUMAR SINHA). On failure of a pauper suit it is the plaintiff who alone becomes liable for payment of Court fee (See STATE OF BOMBAY v. DATTATRAYA NARASINGRAO AIR 1960 Mys 95). 22. No doubt, the appellant was pauper as on the date of filing the appeal; therefore she was permitted to prosecute it in forma pauperis. She has now succeeded partly in the appeal and therefore she is liable to pay the Court fee. Having regard to the amounts she is entitled to on enhancement of compensation and applying Sub-rule (2) of Rule 11 as amended to the facts of the present case, she has undoub .....

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, this Appeal had been registered and heard. She has succeeded partly. She must be thankful that she has been able to prosecute this Appeal without payment of Court fee at the out-set. However, in view of the Order 33 Rule (1) and (2), she cannot be absolved from the liability of paying the Court fee. 26. The Decisions in AIR1981Ker47 , Murukesan v. Dt. Collector, Emakulam; 1978(2) Kar.L.J.22 , Lakstimi Ammal v. Madhavakrishnan; 1952CriLJ1503 , Shamarao V. Pamlekar v. District Magistrate; 1972(1) Kar.L.J. 327, Sha Chunnilal v. Gurushanthappa; ILR1986KAR1162 , Uttam Veranekar v. Shattu Laxman and other plethora of Authorities relied upon by Sri Kothavale are of no assistance to the appellant in view of the amendment effected by the State of Karnataka to Rule 11 of Order 33 C.P.C. which in particular makes it abundantly clear that a person who had been permitted to prosecute the suit or an appeal information pauperis has to pay the requisite Court fee on his being dispaupered, which would have been payable by him if he had not been permitted to sue as pauper. 27. Ultimately, we have to fall back upon the amended provisions of Rule 11 of Order 33 which are the touch-stones to decide t .....

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