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Ambalal Sarupchand Maniar and anr. Vs. Manibhai Tulsibhai Patel and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR672
AppellantAmbalal Sarupchand Maniar and anr.
RespondentManibhai Tulsibhai Patel and anr.
Excerpt:
- .....ex. 5 inter alia alleging that the complainant is not a municipal officer and as such not a public servant who is exempted from affixing any court-fee stamp on the complaint filed by him, and since the complaint bears no court-fee stamp as required by law, it is liable to be dismissed. after hearing the other side, the learned magistrate passed an order wherein he observed that under section 73 of the gujarat municipalities act every municipal officer or servant of the municipality is a public servant defined in section 31 of the indian penal code. since the complaint was, thus, filed by a public servant viz. by the sanitary inspector of the mehsana municipality, no court fee stamp was required to be affixed on the complaint in view of section 0(xii) of the bombay court-fees act,.....
Judgment:

N.G. Shelat, J.

1. The facts giving rise to this application are that opponent No. 1 has been serving as a Sanitary Inspector in the Municipality of Mehsana. He filed a complaint against the two applicants in the Court of the Judicial Magistrate, First Class at Mehsana in respect of their having committed an offence for putting up some construction without obtaining the permission of the Municipality punishable under Section 155(7) of the Gujarat Municipalities Act, 1963. The complaint did not bear any Courtfee stamp. That led the applicants-accused in the case to present an application Ex. 5 inter alia alleging that the complainant is not a municipal officer and as such not a public servant who is exempted from affixing any Court-fee stamp on the complaint filed by him, and since the complaint bears no Court-fee stamp as required by law, it is liable to be dismissed. After hearing the other side, the learned Magistrate passed an order wherein he observed that under Section 73 of the Gujarat Municipalities Act every municipal officer or servant of the municipality is a public servant defined in Section 31 of the Indian Penal Code. Since the complaint was, thus, filed by a public servant viz. by the Sanitary Inspector of the Mehsana Municipality, no Court fee stamp was required to be affixed on the complaint in view of Section 0(xii) of the Bombay Court-fees Act, 1959, to be referred to hereinafter as 'the Act'. The application was consequently rejected.

2. Feeling dissatisfied with that order passed on 17-6-66 by Mr. R.J. Yagnik, Judicial Magistrate, First Class, Mehsana, the applicants-accused preferred Revision Application No. 56 of 1966 in the Court of Sessions at Mehsana. The learned Sessions Judge agreed with the view of the learned Magistrate and held that every municipal servant is a public servant within the meaning of Section 21 of the Indian Penal Code and that any complaint filed by him as such was exempt from the Court-fee stamp under Section 20(xii) of the Act. The application was consequently dismissed. Feeling dissatisfied with that order passed on 16th August 1967 by Mr. M.R. Gehani, Sessions Judge, Mehsana, the petitioners' have come in revision.

3. Schedule II of the Act provides for fixed Court-fees to be affixed on certain type of applications made by any person. Entry No. 1 relates to application or petition. Column No. 2 thereof relates to the Court or authority before which any such application or petition is presented. In that column, Clause (c) refers to the Court-fee stamp of sixty-five nave paise as required to be affixed when it contains a complaint or charge of any offence and presented to any Criminal Court. It is, therefore, a common ground that the present complaint in respect of offence under Section 155(7) of the Gujarat Municipalities Act made before the Judicial Magistrate, First Class at Mehsana, would prima facie require a Court-fee stamp of sixty-five naye paise. Section 5 of the Act then deals with the effect on that account, in respect of that document. Section 20 of the Act relates to certain type of documents which are exempted from any Court-fee stamp required under the Act. Clause (xii) thereof relates to a complaint of a public servant (as defined in the Indian Penal Code), municipal officer, or an officer or servant of a Railway Company. If, therefore, a complaint is filed in respect of any offence before a Magistrate by a public servant as defined in Section 21 of the Indian Penal Code or by a municipal officer, it would be exempt from any Court-fee stamp. It was pointed out by Mr. Sheth by reference to the rules of the Mehsana Municipality that the complainant was merely a Sanitary Inspector, the scale where of was between Rs. 80/- to Rs. 130/ - and that way was not a municipal officer as contemplated under the provisions of the Gujarat Municipalities Act and that he was merely a servant of the Mehsana Municipality. On that ground, therefore, he cannot claim any exemption under Section 20(xii) of the Act.

4. One has, therefore, to see whether the complainant can be said to be a public servant as defined under Section 21 of the Indian Penal Code. Section 21 defines the term 'public servant' denoting a person falling under any of the descriptions hereinafter following, namely:

Twelth. -Every person-

(1) xx xx xx xx xx xx(b) in the service or pay of a local authority....

Now it is clear that the complainant was a Sanitary Inspector in service of the Mehsana Municipality. He was, thus, in the service of a local authority and not an officer of the Municipality. Now Clause (12) in Section 21 as it stands does not say or suggest that he must be an officer of the local authority. On the contrary, Clause (12) begins with the words 'every person' and not 'every officer,' and if therefore he was in the service of the Municipality, he becomes a public servant under Section 21(12) of the Act. Before the amending Act 40 of 1964 came into effect, it is true that the words 'every officer' were there in Clause (12) in place of 'every person', That has led to the controversy in the present case Those words are substituted by the words 'every person' and reading Sub-clause (b) thereof, he need not be a municipal office as thought by Mr. Sheth. It is, therefore, clear that much though the complainant was not a municipal officer, he being a person in the service of the local authority such as Mehsana Municipality, comes within the definition of a public servant under Section 21 Clause (12) of the Indian Penal Code. When the complaint is filed by such a servant, the complaint becomes exempt from any Court-fee stamp and there is, therefore, nothing wrong with the complaint.

The revision application, therefore, fails. Rule discharged.


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