Kondabai Bhaskar Sour and ors. Vs. Additional Commissioner, Amravati Division and ors. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - it is nobody's case that there were persons belonging to scheduled tribes in the village but they did not like to contest the elections.a.b. chaudhari, j.1. rule. heard forthwith by consent of learned counsel for the rival parties.by the present petition, the petitioners have put to challenge the order made by the additional collector, buldana, on 18-3-2008 and confirmed by the additional commissioner, amravati, on 21-5-2008, whereby election for the post of sarpanch and upa-sarpanch of gram panchayat ghatnandra was set aside.2. mr. mahalle, learned counsel for the petitioners, argued that gram panchayat ghatnandra had in all nine posts of members in accordance with the notification. he further argued that the election was held for seven post out of nine posts because the posts reserved for scheduled tribe (woman) and scheduled tribe could not be filled as there is no population of scheduled tribes in the village and therefore the reservation for two posts of members in that category of scheduled tribes was itself basically wrong. according to him, it was impossible to have nine members in the gram panchayat in the absence of any person belonging to scheduled tribes and therefore only seven members were elected. he further argued that in the election to the post of sarpanch and upa-sarpanch, the quorum for the meeting will have to be calculated taking strength as seven members and not nine members. since four members were present in the meeting, though notices were served on all the seven members, there was a quorum and therefore the election could not have been set aside by the additional commissioner in the election dispute. he referred to rule 11 of the bombay village panchayats (sarpanch and upa-sarpanch) election rules, 1964 (for short the election rules) and argued that the quorum spoken of by the said rule will have to be read with reference to the actual members who could be elected in the fact situation of this case.3. per contra, mrs. wasnik, learned a.g.p., supported the impugned order.mr. khandalkar, learned counsel for respondents 2, 3 and 4 argued that there is a concurrent finding of fact recorded by the courts below and there is no need to interfere in the writ jurisdiction and even otherwise the interpretation placed by the courts below is correct and cannot be faulted. strictly going by the terms mentioned in rule 11, total member of gram panchayat will have to be taken into consideration for finding out whether quorum was complete or not.consideration:4. after hearing the learned counsel for the rival parties, at the outset, it would be beneficial to quote rule 11 of the election rules:quorum. - (1) the quorum necessary for the meeting called for the election of the sarpanch or upa-sarpanch shall be one-half of the total number of members of the panchayat.explanation. - if the number of members of the panchayat is odd, in calculating half the number for the purposes of the quorum, faction of a member shall be counted as one, e.g., if the number of members is seven, the quorum shall be five and so on.(2) if within thirty minutes from the time fixed for the meeting, there be no quorum, the presiding officer shall adjourn the meeting.(3) if, at any time during the meeting, it is brought to the notice of the presiding officer that the number of members present fall short of the required quorum, the presiding officer, after waiting for a period of not less than fifteen minutes and not more than half an hour, shall adjourn the meeting.(4) the meeting adjourned under sub-rule (2) or (3) of rule 11 shall be held again on the next day at the same place and hour. a notice of such adjournment shall be fixed on the notice board at the office of the panchayat and the election shall be held at such adjourned meeting or at any subsequent adjournment thereof whether there be quorum present or not.the terminology used in the above rule shows that the quorum necessary shall be one-half of the total number of members of the panchayat. undoubtedly the total number of members means the total number of members which is the strength of the gram panchayat. in the instant case, it is not a disputed position that though all the nine posts of the members were notified for election, only seven posts of members were filled in because there were no candidates belonging to scheduled tribe (woman) and scheduled tribes category in the village. the averments in the writ petition that there are no persons belonging to scheduled tribes category in the village has not at all been seriously disputed. it, therefore, appears that none could get elected from ward nos. 1 and 2 of village ghatnandra for want of persons belonging to scheduled tribes category, which were reserved for that category. it is nobody's case that there were persons belonging to scheduled tribes in the village but they did not like to contest the elections. on the contrary, it appears from the pleadings that there are no persons belonging to scheduled tribes category in the village. therefore, to say that those two posts of members still have to be counted for counting the strength of gram panchayat would be to ask for the performance of impossibility. it will be useful to make reference to the doctrine of impossibility of performance, i.e. lex non-cogit ad impossibilia (the law does not compel a man to do that which he cannot possibly perform) from herbet broom's legal maxim at page 162-this maxim or as it is also expressed, impotentia excusat legem (g) is intimately connected with that last considered, and must be understood in this qualified sense, that impotentia excuses when there is a necessary or invincible disability to perform the mandatory part of the law, or to forbear the prohibitory.in the above factual background, it will have to be held that even if the said provision of rule 11 is held to be mandatory, though i do not decide the same here, the quorum ought to have been calculated on the basis of seven members.5. in the result, writ petition is allowed. impugned orders dated 18-3-2008 made by the additional collector, buldana, and appellate order dated 21-5-2008 made by the additional commissioner, amravati are hereby quashed and set aside. rule is made absolute in above terms. no order as to costs.