Maharashtra Navnirman Sena Through Its General Secretary, Mr. Shirish Laxman Parkar and ors. Vs. Union of India (Uoi) Through Secretary, Food and Civil Supply Department, - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 7. we have gone through the order, and we can also perceive that some of the voters may not be in a position to produce a document as mentioned in the order dated 6th april, 2009. it can be in anybody's knowledge that everybody is not supposed to have a passport, a driving licence, income tax identity (pan) card, service identity card, passbook issued by public sector bank, property documents, sc/st/obc certificate, pension documents, freedom fighter identity card, arms licence, certificate of physical handicap, job card issued under nregs and health insurance scheme smart card. and if there can be a bogus ration card, there can be a bogus passport as well. we also find that the order was passed on 11th april, 2009, but till august 3, 2009, the petitioners did not complain.bilal nazki, j.1. this petition has been filed by the petitioners seeking quashing of an order passed by respondent no. 2 on 11th april, 2009.2. petitioner no. 1 is a political party, petitioner no. 2 is a registered trust, and other petitioners are citizens. respondent no. 2 passed an order dated 11th april, 2009, which reads as under:in continuation of the commission's order no. 3/4/id/2009/sdr dated 6th april, 2009, the commission directs that 'ration cards' issued on or before 2822009 shall also be permitted as an additional document for establishing the identity of electors at the general election to the house of the people in the state of maharashtra.3. earlier to it, an order was passed on 6th april, 2009. the order dated 11th april, 2009 is in addition to the one dated 6th april, 2009.4. the grievance of the petitioners is that ration cards are not basically identity cards, and as such, ration cards should not be taken as proof of identity of a voter, as there are chances of mischief since a large number of ration cards are fake. in this case, the petitioners had also presented in the court that some ration cards were manifestly not genuine. the learned counsel for the petitioners submits that even otherwise, the ration card is never taken as proof of somebody's identity, and other departments of the government are also not taking ration cards as proof of identity. he submits that the reserve bank of india has issued directions that ration card should not be taken as proof of identity. similarly, the government of india, ministry of consumer affairs and food and public distribution department, as on june 22, 2001, issued similar directions. but, on the other hand, we have seen some documents, in which, if one has to apply for passport, the passport authorities consider the ration card as proof of residence.5. the learned counsel for the petitioners has further submitted that the notification, which was issued on 6th april, 2009, mentioned 13 documents for proving the identity of a voter, and all these 13 require a photograph, whereas, in the state of maharashtra, no photograph is affixed on a ration card. therefore, this has been done in order to facilitate bogus voting in the ensuing election.6. respondent no. 2 has filed a counter affidavit, in which it has stated that in terms of section 61 of the representation of people act, 1951, the commission is obliged to take measures and prescribe procedure for preventing impersonation of electors, and therefore, circulars are being issued from time to time. it submits that the ideal situation would be when all the voters have elector photo identity card (epic), but there are number of genuine voters who do not have epic. therefore, such voters cannot be deprived of their right to vote. it was held that even after allowing identities to be established in terms of order dated 6th april, 2009, there may be genuine voters who may not be in possession of any of the documents mentioned in that order.7. we have gone through the order, and we can also perceive that some of the voters may not be in a position to produce a document as mentioned in the order dated 6th april, 2009. it can be in anybody's knowledge that everybody is not supposed to have a passport, a driving licence, income tax identity (pan) card, service identity card, passbook issued by public sector bank, property documents, sc/st/obc certificate, pension documents, freedom fighter identity card, arms licence, certificate of physical handicap, job card issued under nregs and health insurance scheme smart card. the population, which will not be having such an identity proof with him may, on the other hand, have a ration card.8. in the counter affidavit, it has been stated by the respondents that in the state of maharashtra, 75% to 80% people have already epic. it is only about 25% of the population which will be required to prove their identity before they are allowed to vote in terms of orders dated 6th and 11th april, 2009 by a document other than epic.9. at this stage, we will have to balance the interests of the voters, who are in possession of ration cards, but not in possession of epic or any other identity document as mentioned in 6th april order. though there may be some bogus ration cards, yet it cannot be denied that vast majority of ration cards would be genuine; and if there can be a bogus ration card, there can be a bogus passport as well. we also find that the order was passed on 11th april, 2009, but till august 3, 2009, the petitioners did not complain. it is only when the elections were about to be held that the present petition was filed. we also feel that this court would not be in a position to sit in appeal over the order passed by the election commission, as the election commission must have taken all the relevant factors into consideration before passing the impugned order. if we stay the operation of this order today, it will amount to either hampering the election process itself or it will amount to depriving the sizable number of voters from casting their votes.10. another relief claimed by the petitioners is that certain voters have been added into the electoral rolls on the basis of the identity established on ration cards. therefore, the respondents should be directed to remove such names. no particulars have been given. in the absence of any particulars having been given with respect to the bogus voters having been added in the voters' list, it will be difficult for this court to grant such a relief. even otherwise, this relief cannot be granted, as there is a procedure prescribed under the representation of people act and the rules made there under to object to inclusion of a particular voter in a voters' list.11. for these reasons, we do not find merit in this pil. it is dismissed.