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Gopal Chandra Biswas and ors. Vs. Guru Charan Kirtania and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy ; Civil
CourtKolkata
Decided On
Reported inAIR1929Cal141,117Ind.Cas.701
AppellantGopal Chandra Biswas and ors.
RespondentGuru Charan Kirtania and ors.
Excerpt:
- .....that the tenancy was not a mokarari one he demanded ad valorem court-fee on the value of the subject matter in dispute. the value of the subject matter in dispute was directed to be ascertained by the head quarters assistant settlement officer of the settlement after hearing the petitioners. this was the order which was made on the 26th october 1926, a review of that order was applied for and on 10th february 1927 the review was rejected, and the settlement officer directed that unless the deficit court-fee was paid within a certain time the application would be dismissed. this rule was issued on the opposite parties and the senior government pleader of the high court to show cause why the order of 26th october 1926 should not be set aside and the court-fee already paid be deemed.....
Judgment:
ORDER

Mitter, J.

1. The question raised by this rule relates to the amount of Court-fees which is payable on an applioation under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent and for a declaration that the rents of the assessed lands were liable to be enhanced and that the tenants are not mokararidars as recorded in the finally published Record-of-Bights. The said application was treated as a plaint and the petitioners before me valued the claim for declaration at Rs. 5 and the claim for enhancement of rent from Rs. 57-15-6 to 123-9 per year bore a stamp of annas twelve.

2. The Assistant Settlement Officer held that the application claiming enhancement bore the proper Court-fee but in regard to the declaration that the tenancy was not a mokarari one he demanded ad valorem Court-fee on the value of the subject matter in dispute. The value of the subject matter in dispute was directed to be ascertained by the Head Quarters Assistant Settlement Officer of the settlement after hearing the petitioners. This was the order which was made on the 26th October 1926, A review of that order was applied for and on 10th February 1927 the review was rejected, and the Settlement Officer directed that unless the deficit Court-fee was paid within a certain time the application would be dismissed. This rule was issued on the opposite parties and the Senior Government Pleader of the High Court to show cause why the order of 26th October 1926 should not be set aside and the Court-fee already paid be deemed sufficient. I have heard the learned advocates for the petitioner and the Senior Government Pleader who showed cause against the rule.

3. The question turns on the construction to be put on Section 105, Clause (3), Ben. Ten. Act, and on the notification of Government made under this Section No. 6954 dated 21st July 1923 published in the Calcutta Gazette and which is quoted below:

The notification is as follows:In exercise of the powers conferred by Section 105, Sub-section (3), Ben. Ten. Act, 1885 (8 of 1885), as amended by the Devolution Act, 1928 (38 of 1920, and in modification of the Government of India's notification No. 2254-F dated 8th August, 1918 published in the Gazette of India of 10th idem and republished at p. 465 part IA of the Calcutta Gazette of 14th idem, the Governor-in-Council is pleased to direct that an application made under the said section for a settlement of rent during the preparation of a Rscord-of-Rights under Chap. 10, Ben. Ten. Act, shall bear, (a) a stamp of 12 annas for each tenant making or joining or joined in an application, and, (b) if at any time during the hearing of the application, an issue is raised by the applicant under Section 105-A of the said Act, in addition a stamp to the amount of an ad valorem fee chargeable under Article 1, Schedule 1, Court-feas Act 1870 (7 of 1870), as amended by the Bengal Court-fees (amendment) Act, 1922 (4 of 1922) subject to a maximum of Rs. 20.

4. Here the issue with regard to the declaration of the non-mokarari character of the tenancy is raised by the petitioners under Section 105-A, Ben. Ten. Act, and according to the notification which I have quoted above it seems to me clear that a stamp to the amount of an ad valorem fee chargeable under Article 1, Schedule 1, Court-fees Act 1870 as amended by the Bengal Court-fees Amendment Act (No. 4 of 1922) subject to a maximum of Rs. 20 is payable. Article 1, Schedule 1, of Court-fees Act enacts that the Court-fee payable on a plaint presented to any civil or revenue Court should bear an ad valorem fee according to the amount or value of the subject matter in dispute. In support of the rule the learned advocate for the petitioners has argued that the declaratory relief sought, and the consequential relief of enhancement prayed for in the application under Section 105-105-A bring the case within Section 7(iv) C of Court-Fees Act and consequently the ad valorem Court-fee was payable on the amount at which the relief sought was valued in the application under Section 105-A which in this case amounts to Rs. 5. I do not think Section 7(iv) C of Court-Fees Act can have any possible application to the pre- sent case. The Court fees have to be paid according to the notification under Section 105(3) which has been quoted above in extenso. The Court-fee payable is the ad valorem fee on the value of the subject matter of dispute. In the course of the argument a suggestion was made that the notification was ultra vires as it contravened the provisions of Section 35, Court-fees Act which gave authority to reduce the fees mentioned in the Act and it is said that as the effect of the notification is not to reduce or remit the Court-fees but to increase it, the notification is ultra vires. This argument, however, was not seriously pressed. There is also no substance in it as the Court-fees in respect of Section 105 proceedings have to be determined by Section 105(3), Ben. Ten. Act and the notification under the said section. The notification incorporates by reference only Article 1, Schedule 1, Court-fees Act and no other provisions of the said Act.

5. It is angued for the petitioners that it could not have been the intention of the legislature that an application under Section 105-A would bear a higher Court-fee than a plaint in a suit for same relief in the civil Court. But the intention of the legislature can only be gathered from the plain words of the notification tinder Section 105(3) and it is not permissible to a Court while construing the plain words of a statute or a statutory rule to speculate whether the intention of the legislature was to impose a higher Court-fee than that provided for by the Court-fees Act in suits where similar reliefs are asked for in the civil Courts. In this connexion the following remarks of Maxwell in his book on the Interpretation of Statutes seem very apposite : see p. 94 Sixth Edition (1920).

In a word then it is to be taken as a fundamental principle, standing as it were on the threshold of the whole subject of interpretation, that the plain intention of the legislature, as expressed by the language employed Is invariably to be accepted and carried into effect, whatever may be the opinion of the judicial interpreter of its wisdom or justice. If the language admits of no doubt or secondary meaning it is to be obeyed.

6. The notification is clear and the Court-fee payable is the ad valorem fee on the subject-matter of dispute and the enquiry as to what the subject matter of dispute is, is still pending. This Rule is discharged. There will be no order as to costs.


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