Bhagabai W/O Ramdas MaraThe and Latabai W/O Pralhad Foke @ MaraThe Vs. the State of Maharashtra, - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act.p.r. borkar, j.1. this writ petition challenges issuance of notice dated 13.08.1996, issued by the additional commissioner, nashik division, nashik, for revision of the order passed by the dy. collector, dhule, in case no. 298 of 1973, decided on 17.01.1977, which was a case under the maharashtra restoration of lands to scheduled tribes act, 1974 (for short 'the act of 1974').2. brief facts giving rise to this petition may be stated as below :.by way of exchange of lands non tribal transferee giridhar exchanged his land with tribal transferor dullabha gangaram bhil. the lands were situated at village gunjali, tal. taloda, dist. nandurbar (earlier dhule). the lands held by non tribal giridhar were survey no. 43/1 admeasuring 3 a. 29 g. plus 21 g. pk., assessed at rs. 9.50 and survey no. 43/2 admeasuring 8 acres plus 2 a. 18 g. pk. assessed at rs. 20.19 ps. said lands were exchanged with a land of dullabha, who was tribal. it is land survey no. 11 admeasuring 13 a. 15 g. plus 1 a. pk. assessed at rs. 34.12, situated at gunjali. in the year 1970, the lands got by giridhar in exchange, which was survey no. 11, was partitioned and giridhar's two sons keshav and laxman got survey no. 11/1 and 11/2 respectively and brother of giridhar by name hari got survey no. 11/3 to his share. present petitioner no. 1 bhagabai is predecessor of survey no. 11/1 from keshav giridhar, as per mutation entry no. 44 dated 10.04.1981. present petitioner no. 2 latabai is predecessor of survey no. 11/2 from laxman giridhar, as per mutation entry no. 45 dated 08.04.1981. 3. after the exchange, the leave reserve dy. collector, dhule, suomoto started enquiry under section 3 of the act of 1974 bearing adiwasi case no. 298/76. at that time, he had issued notices to the non tribal transferee giridhar, his two sons keshav, laxman and brother hari. dullabha was also party as transferor. the dy. collector recorded statement of the tribal transferor and non tribal transferee no. 1 on 30.04.1976. non tribal transferee no. 1 giridhar said that survey no. 11 was in possession of his sons and brother as a result of partition. the hearing of the case did not proceed for some time as proceedings were challenged in writ petition no. 11645 of 1976, but ultimately after withdrawal of writ petition, the matter was taken up for further hearing on 12.10.1976. on that day statements of all parties were recorded. the tribal transferor in his statement shown his willingness to cultivate his own land personally and to pay the amount as may be determined by this court to the non tribal. ultimately, the dy. collector came to a conclusion that the proceedings deserves to be dropped.4. in the judgment dated 17.01.1977 the leave reserve dy. collector gave certain reasons. first is that survey no. 42/1 was cultivated by the tribal transferor and his mother; whereas survey no. 43/2 was given in partition to his brothers naval and gulab. similarly, non tribal transferee no. 1 giridhar has also stated about partition and allotment of portions of land to his sons and brother. thus, it is observed that the transfer of survey no. 11 was to non tribal nos. 2 to 4 prior to 15.03.1971 and hence they do not fall within the meaning of 'successor in interest' and 'non tribal transferee' vide clauses (g) and (l) of sub-section (1) of section 2 of the act of 1974. in the circumstances, he dropped the proceedings.5. thereafter, notice was issued on 13.08.1976 by the divisional commissioner, nashik, for reopening case in revision. hence, this challenge is by way of writ petition. the main challenge is on the ground of limitation. the learned a.g.p. shri d.v. tele submitted that as per section 7 of the act of 1974, there is no limitation, if revision is as per directions of the state government. he referred to provisions of section 7. section 7 is as follows :7. where no appeal has been filed within the period provided by sub-section (2) of section 6, the commissioner may suomotu or on the directions of the state government at any time(a) call for the record of any inquiry or proceeding of any collector for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of, such collector, as the case may be and;(b) pass such order thereon as he thinks fit;provided that no such record shall be called for after the expiry of three years from the date of such order except in cases where directions are issued by the state government; and no order of the collector shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and to be heard.6. this court has occasion to interpret the provisions of section 7 in unreported judgment in the case of shaikh nabu shaikh abu and anr. v. zipa gokul bhil and ors. w.p. no. 1011 of 1997 decided on 02.06.2008. in the said case suomoto revision by the commissioner was challenged. the judgment para 3 discloses that the proceedings were dropped in the year 1977 and the revisional powers were invoked in the year 1996 and it was argued relying upon case of ibrahimpatnam taluk vyavasaya coolie sangham v. k. suresh reddy and ors. 2003 air scw 4084 and the case of sridhar damodar kamalaskar (wani) deceased heirs and ors. v. sonu ganaji dhumase and ors. : 2003 (2) bom.c.r.50 that even though statute does not prescribe any period of limitation, the power of suomoto revision has to be exercised within reasonable period and what is reasonable time has to be determined on the facts of each case. in the case of ibrahimpatnam (supra), the court was dealing with the provisions of section 50b of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950. in the case of sridhar (supra) the division bench was considering revisional powers, the division bench held that the revisional powers cannot be exercised in a mechanical manner and it should be exercised after conscious application of mind to the facts and circumstances of the case. in the facts and circumstances of the case, in the case cited, suomoto revision was entertained after period of 19 years and it was held that it was not within reasonable period and moreover exercise of revisional power was in a mechanical way. in the circumstances of the case the petition was allowed.7. the learned a.g.p. shri d.v. tele pointed out to me the contents of reply affidavit filed on behalf of the respondents. it is stated therein that the petition is premature. the main issue of notice is yet to be decided and it will be taken on merit after recording evidence and after giving full opportunity to the petitioners to plead their case. it is also stated that in civil revision application no. 4384 of 1984, the supreme court has held that the lands which are transferred prior to 15.03.1971 should also be taken in the purview of the act and accordingly the government of maharashtra vide circular dated 15.06.1989 directed the commissioner to take review of the cases decided by the concerned competent authorities, which were closed or dropped and in the circumstances the government has given direction to the commissioner to review the cases. in this case the decision of the leave reserve dy. collector, dhule is dated 17.01.1971. the review sought to be made by the commissioner by way of revision is initiated in 1996. it appears that as per direction of the supreme court, the government of maharashtra had given directions to the commissioner to review cases vide circular, revenue and forest department no. rev/1988/pk/993l9 dated 15.06.1989.absolutely there is no reason why though the directions were given in june, 1989, the powers of suo moto revision are being exercised in 1996 that too without giving any reason.8. this is a case of exchange and prima facie after going through the evidence recorded by the dy. collector, the commissioner ought to have recorded prima facie satisfaction in terms of section 3 (b) i.e. the land acquired in exchange by tribal transferor is less in value than the value of land given to him in exchange. under the circumstances unless the basic condition of satisfaction for entertaining revision for restoration is fulfilled, in my opinion, the exercise of power is mechanical and without application of mind. in this view of the matter, i am inclined to follow the ratio laid down in the case of shaikh nabu shaikh abu and anr. v. zipa gokul bhil and ors. w.p. no. 1011 of 1997 decided on 02.06.2008.9. in the result the writ petition is allowed. the notice dated 13.08.1996 initiating review/revision proceeding by the additional commissioner, nashik division, nashik, is hereby quashed and set aside. rule made absolute accordingly.