J. Xavier D'Souza Vs. State of Goa and Ors. (09.09.2005 - BOMHC) - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - meena goltekar, who is stated to be the superintendent of the sub-jail, sada at vasco-da-gama, it was stated that the file of the petitioner was placed before the review committee on 6 occasions and lastly on 3:1 -2005 when the case of the petitioner for early release was not recommended. the district magistrate of the native place of the petitioner has not recommended the premature release of the petitioner on the ground that the mother as well the neighbours had expressed their reservations over premature release of the petitioner. the superintendent of police, south goa, also did not recommend the premature release of the petitioner on the ground that there was strong objection from the family members of the victim and there was possibility that the petitioner may take revenge on them. the superintendent of police, karwar also has not recommended the premature release of petitioner on the same grounds as given by the said district magistrate.ordern.a. britto, j.1. rule.2. heard forthwith.3. the petitioner is undergoing life imprisonment under section 302 i. p. c. and has already undergone imprisonment of 18 years, 5 months and 6 days. the petitioner approached this court in criminal writ petition no. 26/2003 and the learned division bench of this court by order dated 6-10-2003 rejected the plea of the petitioner for his early release after perusing the report of committee for the review of sentences. the review committee had then stated that the police authorities had submitted report that the petitioner may not be accepted in society in the event of his release. the division bench of this court was of the view that the ground on which the petitioner's plea was rejected could not be termed as extraneous.4. the petitioner again approached this court in criminal writ petition no. 51/2004. by order dated 2-9-2004, the petition was dismissed as premature as the case of the petitioner was to be placed before the committee in september, 2004, after a lapse of 2 years.5. in the affidavit filed by ms. meena goltekar, who is stated to be the superintendent of the sub-jail, sada at vasco-da-gama, it was stated that the file of the petitioner was placed before the review committee on 6 occasions and lastly on 3:1 -2005 when the case of the petitioner for early release was not recommended. it was stated that the file of the petitioner would be placed again. it appears that it was placed again and the case of the petitioner was considered by the said committee on 8-8-2005. the committee in rejecting the case of the petitioner has taken note of the fact that the petitioner had completed 18 years, 5 months and 6 days of imprisonment. the district magistrate of the native place of the petitioner has not recommended the premature release of the petitioner on the ground that the mother as well the neighbours had expressed their reservations over premature release of the petitioner. the superintendent of police, south goa, also did not recommend the premature release of the petitioner on the ground that there was strong objection from the family members of the victim and there was possibility that the petitioner may take revenge on them. the superintendent of police, karwar also has not recommended the premature release of petitioner on the same grounds as given by the said district magistrate. it also appears that the prisoner has escaped from custody on 3-5-2004. the committee has taken note of the fact that although the petitioner is a resident of hiramath, honawar, karwar, the prisoner after his escape on 3-5-2004 was found at canacona where the family members and witnesses of the deceased in sessions case no. 2/1987 were residing and not only that prisoner was also found in possession of a knife of 30 cms. length and thereafter the prisoner was tried and convicted in c.c. no. 195/3/c by order dated 5-6-2004. considering conduct of the prisoner, the committee came to the opinion that the prisoner had not lost potentiality for committing crimes again and future recurrence of commission of crimes by the petitioner could not be ruled out.6. the reasons given by the committee for refusal to recommend the case of the petitioner for his early release are very much germane and cannot be termed to be either extraneous or unreasonable in such matters.7. considering the above, i find there is no merit in this petition and, therefore, the same is hereby dismissed. rule discharged with no order as to coats.

Judgment:
ORDER

N.A. Britto, J.

1. Rule.

2. Heard forthwith.

3. The petitioner is undergoing life imprisonment under Section 302 I. P. C. and has already undergone imprisonment of 18 years, 5 months and 6 days. The petitioner approached this Court in Criminal Writ Petition No. 26/2003 and the learned Division Bench of this Court by order dated 6-10-2003 rejected the plea of the petitioner for his early release after perusing the report of Committee for the review of sentences. The Review Committee had then stated that the Police authorities had submitted report that the petitioner may not be accepted in society in the event of his release. The Division Bench of this Court was of the view that the ground on which the petitioner's plea was rejected could not be termed as extraneous.

4. The petitioner again approached this Court in Criminal Writ Petition No. 51/2004. By Order dated 2-9-2004, the Petition was dismissed as premature as the case of the petitioner was to be placed before the Committee in September, 2004, after a lapse of 2 years.

5. In the affidavit filed by Ms. Meena Goltekar, who is stated to be the Superintendent of the Sub-Jail, Sada at Vasco-da-Gama, it was stated that the file of the petitioner was placed before the Review Committee on 6 occasions and lastly on 3:1 -2005 when the case of the petitioner for early release was not recommended. It was stated that the file of the petitioner would be placed again. It appears that it was placed again and the case of the petitioner was considered by the said Committee on 8-8-2005. The Committee in rejecting the case of the petitioner has taken note of the fact that the petitioner had completed 18 years, 5 months and 6 days of imprisonment. The District Magistrate of the native place of the petitioner has not recommended the premature release of the petitioner on the ground that the mother as well the neighbours had expressed their reservations over premature release of the petitioner. The Superintendent of Police, South Goa, also did not recommend the premature release of the petitioner on the ground that there was strong objection from the family members of the victim and there was possibility that the petitioner may take revenge on them. The Superintendent of Police, Karwar also has not recommended the premature release of petitioner on the same grounds as given by the said District Magistrate. It also appears that the prisoner has escaped from custody on 3-5-2004. The Committee has taken note of the fact that although the petitioner is a resident of Hiramath, Honawar, Karwar, the prisoner after his escape on 3-5-2004 was found at Canacona where the family members and witnesses of the deceased in Sessions Case No. 2/1987 were residing and not only that prisoner was also found in possession of a knife of 30 cms. length and thereafter the prisoner was tried and convicted in C.C. No. 195/3/C by Order dated 5-6-2004. Considering conduct of the prisoner, the Committee came to the opinion that the prisoner had not lost potentiality for committing crimes again and future recurrence of commission of crimes by the petitioner could not be ruled out.

6. The reasons given by the Committee for refusal to recommend the case of the petitioner for his early release are very much germane and cannot be termed to be either extraneous or unreasonable in such matters.

7. Considering the above, I find there is no merit in this petition and, therefore, the same is hereby dismissed. Rule discharged with no order as to coats.