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Sanjeevkumar Harakchand Kankariya Vs. Union of India, through the Ministry of Law and Justice, New Delhi and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Aurangabad High Court
Decided On
Case NumberWrit Petition No. 4919 of 2014
Judge
AppellantSanjeevkumar Harakchand Kankariya
RespondentUnion of India, through the Ministry of Law and Justice, New Delhi and Others
Excerpt:
..... issue is – whether petition filed by petitioner seeking a direction from respondent/ state for refund of entire amount of court fees in adaptation of any of the modes prescribed under section 89 of cpc is maintainable and whether trial court has committed serious error in permitting refund of only 50% of court fees court held - award has not been passed by lok adalat - on consideration of provisions of section 21 of the act, 1987, it is evident that an award of lok adalat shall be deemed to be a decree of civil court and matters where award has been passed by lok adalat are governed by provisions of the act, 1870 and as such, in such of those matters, refund of court fees shall be in accordance with the provisions of the act, 1870 - thus, it is a case of legislation by..........the reason that court fees act, 1870, is a preconstitutional enactment, and not enforceable in the state of maharashtra after enforcement of bombay court fees act, 1959. on consideration of list i incorporated in seventh schedule under article 246 i.e. the union list, it is noticed that same provides for the subjects matter in respect of which parliament has exclusive power to make laws. the parliament has exclusive powers to make law relating to subjects enumerated in list i of seventh schedule i.e. union list. entry no.77 relates to constitution, organization, jurisdiction and powers of the supreme court (including contempt of such court), and the fees taken therein; persons entitled to practise before the supreme court. entry 79 relates to extension of the jurisdiction of a high court.....
Judgment:

R.M. Borde, J.

1. Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.

2. The petitioner is seeking a writ, order or direction to the State of Maharashtra for refund of entire amount of court fees to such of the litigants including the petitioner who have presented proceedings in the Civil Court and those proceedings have been disposed of in adaptation of any of the modes prescribed under Section 89 of the Code of Civil Procedure, 1908. The petitioner also seeks to quash notification dated 08.05.2013, issued by Law and Judiciary Department, Government of Maharashtra, bearing No.HCA.2010/C.R.87/D19, issued under Section 43(2) of the Maharashtra Court Fees Act, 1959, on the ground that the notification is contrary to provisions of Section 16 of the Court Fees Act, 1870 read with Sections 20 and 21 of the Legal Services Authority Act, 1987. The petitioner also seeks a declaration that Respondent No.2 has no authority in law to issue a notification contrary to the provisions of Section 16 of the Court Fees Act, 1870 and prays that all such notifications and rules, run contrary to the aforesaid provisions, be quashed and set aside.

3. The petitioner entered into an agreement to sell immovable property situate at Aurangabad with Respondents No.3 and 4. Since the agreement to sell was not specifically performed, petitioner presented Special Civil Suit No.274 of 2013 in the Court of Civil Judge, Senior Division, Aurangabad, praying for grant of relief of specific performance of contract. Respondents No.3 and 4 resisted the claim by filing written statement. Learned 5th Joint Civil Judge, Senior Division, Aurangabad, before whom suit was pending, considering nature of the suit, directed the parties to adopt a mode for alternate dispute resolution prescribed under Section 89 of the Code of Civil Procedure i.e. mediation. On reference to mediator, the parties, after due deliberations and with the aid of the mediator, resolved their dispute amicably and terms of settlement were presented to the Court. The mediator also submitted his report informing that the dispute is amicably settled between the parties. On 07.04.2014, terms of compromise were presented to the Court and ultimately the trial Court was pleased to dispose of the suit and passed decree in terms of the compromise. The petitioner requested for refund of total court fees, however, learned 5th Joint Civil Judge, Senior Division, Aurangabad, on consideration of notification issued by the Government, referred to above, was pleased to permit refund of only 50% court fees.

4. The petitioner contends that the trial Court has committed serious error in permitting refund of only 50% of the court fees. Reliance is placed on provisions of Section 16 of the Court Fees Act, 1870 whereunder, according to the petitioner, he is entitled to claim refund of total court fees deposited by him, since the matter has been disposed of in view of adaptation of mode prescribed under Section 89 of the Code of Civil Procedure, 1908. It is contended that Section 21 of the Legal Services Authorities Act, 1987, provides that where a compromise or settlement has been arrived at, before a Lok Adalat in a case referred to it under subsection (1) of Section 20 of the said Act, the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870. It is provided that independently also, in view of provisions of Section 16 of the Court Fees Act, 1870, which shall have precedence over the State enactment, total court fees paid by the litigant shall have to be refunded.

5. In order to controvert the contentions raised by petitioner, an affidavit-in-reply has been presented on behalf of Respondent-State, by Solicitor-cum-Deputy Secretary to Government, Law and Judiciary Department, Aurangabad. It is contended that in exercise of the powers conferred by subsection (2) of Section 43 of the Maharashtra Court Fees Act, 1959, the Government of Maharashtra, by its Order No.HCA.2010/C.R.87/D19, dated 08.05.2013, has directed to refund such part of the Court fees paid by the parties, as specified in column (2) of the Schedule thereto. It is contended that 100% of the Court fee paid by the plaintiff, appellant or petitioner is refundable in the proceedings referred to in Articles 20, 21, 22, 23, 38A, 38B and 38C of the Schedule II of the Act. It is contended that in all other matters, not covered under clause 1 of the circular dated 08.05.2013, refund of only 50% court fees is permissible. It is further contended by the State that Section 66 of the Karnataka Court Fees and Suits Valuation Act, 1958, also provides for refund of 50% of the Court fees whenever by agreement of parties, any suit is dismissed as settled out of Court or ended in a compromise decree before any evidence has been recorded or any appeal is disposed of before commencement of hearing. Section 69 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, also provides for similar provision in respect of refund of 50% of the Court fees. It is, thus, contended that the directions issued under Order dated 08.05.2013, in observance of subsection (2) of Section 43 of the Maharashtra Court Fees Act, 1959, is legal and proper and claim raised by the petitioner, in the instant petition, does not deserve consideration.

6. The petitioner contends that when the parties are directed to adopt any of the mode for resolution of dispute provided under Section 89 of the Code of Civil Procedure, it is inconsistent with the object incorporated in Section 89 of the Code not to direct refund of court fees. Section 89 of the Code of Civil Procedure provides for settlement of dispute outside the Court. The provisions are incorporated in view of recommendations made by the Law Commission of India and Malimath Committee. It was suggested by Law Commission that the Court may require attendance of any party to the suit or proceeding in person with a view to arrive at an amicable settlement. The Malinath Committee recommended to refer the dispute after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate disputes resolution method, the suit shall proceed further. The provisions of Section 89 of the Act are held to be constitutional and valid by the Supreme Court in the matter of Salem Advocates Bar Association, Tamil Nadu Vs. Union of India, reported in AIR 2003 SC 189. The Apex Court, in the matter of Salem Advocates Bar Association (supra), has suggested that in the event of compulsory reference to conciliation/mediation, if expenditure on conciliation/mediation is borne by the Government, it may encourage the parties to come forward for conciliation/mediation. The Court further observed that on the other hand, if the parties feel that they have to incur extra expenditure for resorting to such ADR. modes, it is likely to act as a deterrent for adopting these methods. The Central Government is directed to examine it and if agreed, it was requested to make specific financial allocation for judiciary for including the expenses involved for mediation/conciliation under Section 89 of the Code of Civil Procedure. Section 89 of the Code of Civil Procedure reads thus:

"89 Settlement of disputes outside the Court(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute has been referred

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of subsection (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

7. It must be noted that after incorporation of Section 89 by virtue of Amendment Act of 1999, the provisions of Section 16 of the Court Fees Act, 1870 came to be amended, which reads thus:

"16. Refund of fee: Where the court refers the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908, the plaintiff shall be entitled to a certificate from the court authorizing him to receive back from the Collector, the full amount of the fee paid in respect of such plaint.

The amendment has been brought into force in the year 1999."

8. The procedure to be followed for conduct of mediation and for Lok Adalats is provided for in the Legal Services Authorities Act, 1987. Section 19 of the Act contemplates holding of Lok Adalats for amicable settlement of the dispute. Section 20 provides for cognizance of the cases by Lok Adalats. Whereas, Section 21 provides for award of Lok Adalat and also prescribe refund of court fees. Section 21 (1) reads thus:

21. Award of Lok Adalat :(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under subsection (1) of section 20, the courtfee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870.

9. The petitioner submits that although suit, in the instant matter, has not been settled before Lok Adalat, however, settlement has been arrived at in mediation proceedings in pursuance to a reference made by the Court compulsorily in view of Section 89 of the Code of Civil Procedure. The petitioner, thus, submits that in view of provisions of Section 16 of the Court Fees Act, 1870, he is entitled to claim refund of court fee and operation of Section 16 cannot be controlled or nothing contrary to what has been provided under Section 16 of the Act of 1870 can be prescribed under the Maharashtra Court Fees Act, 1959 and if such prescription is made, same shall be deemed to be contrary to the Constitutional mandate under Article 254 of the Constitution of India. It is contended that amendment prescribing refund of court fees under Section 16 of the Court Fees Act, 1870, is incorporated in 1999, which is much later in point of time of prescription of Section 43 of the Maharashtra Court Fees Act, 1959. It is, thus, contended that provisions of law made by the State Legislature, which is repugnant to the provisions of law made by the Parliament, shall give way to the law made by the Parliament.

10. The contention raised by the petitioner, though appears to be attractive, however, same cannot be accepted for the reason that Court Fees Act, 1870, is a preConstitutional enactment, and not enforceable in the State of Maharashtra after enforcement of Bombay Court Fees Act, 1959. On consideration of List I incorporated in Seventh Schedule under Article 246 i.e. the Union list, it is noticed that same provides for the subjects matter in respect of which Parliament has exclusive power to make laws. The Parliament has exclusive powers to make law relating to subjects enumerated in List I of Seventh Schedule i.e. Union list. Entry No.77 relates to Constitution, Organization, Jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court. Entry 79 relates to Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union territory. Entry 95 is in respect of Jurisdiction and powers of all Courts, except the Supreme court, with respect to any of the matters in this List; admiralty jurisdiction. Whereas, Entry 96 relates to Fees in respect of any of the matters in the said List, but not including fees taken in any Court. List II of Seventh Schedule is the State List and it is the State Legislature which has powers to make laws for such State or any part thereof in respect to any of the matters enumerated in List II in the Seventh Schedule. The State List incorporates Entry 65 as regards Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in the said List. Entry 66 relates to Fees in respect of any of the matters in the said List, but not including fees taken in any Court. List III of the Seventh Schedule is Concurrent List in respect of which both the Parliament as well as State Legislature shall have jurisdiction and powers to make laws; and relevant Entry is at Sr.No.47 which prescribes Fees in respect of any of the matters in the said List, but not including fees taken in any Court.

11. Thus, so far as State of Maharashtra is concerned, the subject relating to prescription of fees in the Courts, which is a part of State Judiciary and referrable to the matters included in List II of Seventh Schedule, is exercisable by the State Legislature. The State of Maharashtra has enacted law relating to levy of court fees, namely Maharashtra Court Fees Act, being Act No.XXXVI of 1959. In view of the said enactment, Court Fees Act, 1870 stands repealed so far as State of Maharashtra is concerned. The matters arising in the Courts in State of Maharashtra shall have to be dealt with in accordance with Maharashtra Court Fees Act, 1959. The Indian Court Fees Act, 1870 is no longer applicable to the State of Maharashtra. We are supported by the Division Bench judgment of this Court in the matter of Pushpabai Shankerlal Sura and others Vs. The Official Liquidator, Sholapur Oil Mills Ltd., reported in AIR 1970 Bombay 271. The Division Bench has observed in paragraph 3 of the judgment as below:

“3 As we have recently observed in a similar case L.P.A. No.44 of 1968, dated 15.10.1968 (Bombay), the said Act has been recast in 1959 and the Indian Court Fees Act, 1870, is no longer applicable to this State.”

12. In view of above, the contention raised by the petitioner in respect of applicability of provisions of Section 16 of the Court Fees Act, 1870 and primacy of said provisions, does not deserve consideration.

13. Learned Counsel appearing for the petitioner has placed reliance on the judgment delivered by Kerala High Court in the matter of Vasudevan V.A. Vs. State of Kerala and others, reported in AIR 2004 Kerala 43, wherein the question which arose for consideration was, as to whether petitioner therein is entitled for refund of whole court fees paid in the suit which was ultimately referred to Lok Adalat and settled between the parties. Learned Single Judge of Kerala High Court, on consideration of provisions of Section 21 of the Legal Services Authorities Act, 1987, recorded a conclusion that since an award has been passed by the Lok Adalat, which has a force of decree, the matter would be governed by the provisions of Legal Services Authorities Act and petitioner would be entitled to refund of court fees.

14. In the instant matter, the award has not been passed by the Lok Adalat. Section 21 of the Legal Services Authorities Act, 1987 stipulates that every award of the Lok Adalat shall be deemed to be a decree of Civil Court or, as the case may be an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under subsection (1) of section 20, the Courtfee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870. On consideration of provisions of Section 21 of the Legal Services Authorities Act, 1987, it is evident that an award of the Lok Adalat shall be deemed to be a decree of Civil Court and the matters wherein award has been passed by the Lok Adalat are governed by the provisions of Legal Services Authorities Act and as such, in such of those matters, refund of court fees shall be in accordance with the provisions of Court Fees Act, 1870. It is to be noted that in Section 21 of the Legal Services Authorities Act, 1987, provisions contained in Court Fees Act, 1870, relating to refund of court fees, are incorporated. Thus, it is a case of legislation by incorporation and by virtue of such incorporation, provisions of Court Fees Act, 1870 relating to refund of court fees, are made applicable in respect of award passed by the Lok Adalat. The analogy applicable to the awards of Lok Adalat cannot be applied to the decrees passed by the Courts on the basis of settlement, even though same is reached in furtherance of a mediation taken up under Section 89 of the Code of Civil Procedure. Once it is held that provisions of Maharashtra Court Fees Act, 1959, are attracted, it would be permissible for the State to issue notification prescribing refund of court fees in exercise of powers conferred under Section 43(2) of the Act. The notification dated 08.05.2013, thus, cannot be said to be ultra vires the powers exercisable by the State under Maharashtra Court Fees Act, 1959.

15. In view of the discussion as above, writ petition does not deserve consideration and deserves to be dismissed and same is accordingly dismissed.

16. While disposing of the writ petition, we deem it appropriate to recommend the State Government to issue necessary notification or to bring out necessary amendment incorporating provision in respect of refund of court fees to the extent of 100% in respect of the matters which are disposed of by the Courts on adaptation of any of the modes prescribed under Section 89 of the Code of Civil Procedure, 1908. Such a step would be in consonance with the directives issued by the Supreme Court in Salem Advocates Bar Association Vs. Union of India (supra), as well as it would bring parity with the provisions of Section 21 of the Legal Services Authorities Act and Section 16 of the Court Fees Act, 1870. Thus, in order to bring uniformity in the matter of refund of court fees and to eliminate discrepancies so far as matters disposed of in view of the award passed by Lok Adalat; and such of those matters which are disposed of in terms of the settlement arrived at on the basis of observance of any of the modes prescribed under Section 89 of the Code of Civil Procedure, a direction needs to be issued by the State of Maharashtra to take effective steps. Such a positive move will also give boost to the movement of Alternate Disputes Resolution, which, in fact, curtails precious time of the Court as well as avoids unnecessary and prolonged indulgence in litigation before the Court. We hope and trust that RespondentState would consider this suggestion earnestly and take measures expeditiously.

17. Rule stands discharged. There shall be no order as to costs.

Copy of this judgment be forwarded to the Principal Secretary, Law and Judiciary Department, Government of Maharashtra, for necessary compliance.


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