Nandkumar S/O B.H. Naidu and ors. Vs. Thanwardas S/O Hasanand Janyani 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - consequently, the impugned orders passed by the rent controller as well as additional collector, nagpur are liable to be quashed and set aside.a.p. lavande, j.1. heard mr. jaiswal, learned counsel for the petitioners. mr. n. lalwani, adv. holding for adv. d.p. lalwani, for the respondent nos. 1 and 2 states that he is unable to argue the matter since all the case papers have been taken from mr. d.p. lalwani and as such he has no instructions to make any submissions.2. by this petition, the petitioners challenge the order dated 21-11-2000 passed by additional collector, nagpur in r.c. appeal no. 77/a-71(l)/99-2000 by which the appeal filed by the petitioners under clause 21 of c.p. and berar letting of houses and rent control order, 1949 ('the order' for short) and the order dated 11-12-1998 passed by the rent controller, nagpur in rev. case no. 194/a-71(1 )/91-92 by which fair rent in respect of the suit premises was fixed @ rs. 3/- per sq. ft.3. the petitioners are tenants of the respondents 1 to 4. the suit premises were let out to the petitioners in the year 1971 at the monthly rent of rs. 175/-per month. respondents 1 to 4 filed application dated 29-6-1998 seeking fixation of fair rent in respect of the suit premises at rs. seven to eight per sq. ft. excluding corporation taxes. the petitioners were served with notice but they did not put in their appearances in the case. by order dated 11-12-1998 the rent controller fixed the fair rent @ rs. 3/- per sq. ft. excluding corporation taxes. against the said order, the petitioners filed appeal to the additional collector, which was also dismissed by the impugned order dated 21-11-2000. aggrieved by both the orders, the petitioners/tenants have invoked writ jurisdiction of this court.4. although several grounds have been urged in support of the petition, mr. jaiswal, learned counsel for the petitioners, at the outset submitted that the application filed by respondents 1 to 4 for fixation of the fair rent was liable to be dismissed on the ground that in the application filed for fixation of fair rent the respondents 1 to 4 had not mentioned the age of construction of the suit premises which was of utmost importance. he further submitted that in the absence of such basic pleadings, the application for fixation of fair rent was liable to be dismissed. in support of this submission, mr. jaiswal placed reliance upon the judgment delivered by learned single judge of this court in shantilal sohanlal shah v. secretary, krishi utpanna bazar samiti, balapur 1995(2) mh.l.j. 12. mr. jaiswal submitted that since the ground goes to the root of the matter, the petitioners are entitled to raise this ground for the first time in the writ petition. he invited my attention to the ground (f) taken in this regard in the petition.as stated above, no effective appearance has been put up on behalf of respondents 1 to 4.5. i have considered the submissions advanced by learned counsel for the petitioners and perused the record and the judgment relied upon. in shantilal shah's case (supra) learned single judge of this court dismissed the petition filed by the petitioner/landlord challenging the order passed by the authorities under rent control order dismissing the application. learned single judge has held that in an application for fixation of fair rent filed by the landlord he is bound to plead the age of construction of the house since in terms of clauses 4, 5, 6 and 7 of the rent control order the determination of fair rent depends upon the age of construction of the house. after considering the effect of clauses 4, 5, 6 and 7 of the rent control order, the learned single judge has held that in the absence of pleadings with regard to the age of construction of the house, the application for fixation of fair rent was liable to be dismissed. perusal of the application filed by respondents 1 to 4 discloses that the age of construction of the suit house has not been mentioned. therefore, the ratio in shantilal shah's case (supra) is squarely applicable in the present case. no doubt, since the matter proceeded ex parte, the petitioners have neither taken this point before the rent controller nor before the appellate authority. however, since the point goes to the root of the matter that is, to the maintainability of the application for fixation of the fair rent, in my considered opinion, the petitioners are entitled to urge this ground for the first time in the writ petition. since respondents 1 and 4 have not pleaded regarding the age of the construction of the suit house, the application filed by respondents 1 to 4 was not maintainable. consequently, the impugned orders passed by the rent controller as well as additional collector, nagpur are liable to be quashed and set aside.6. for the reasons aforesaid, the impugned order dated 11-12-1998 passed by the rent controller and the order dated 21-11-2000 passed by the additional collector are quashed and set aside. needless to mention that the respondents are at liberty to file fresh application for fixation of fair rent in respect of the suit house, if they so desire and if such an application is filed, the competent authority shall decide the same in accordance with law.7. rule is made absolute in the aforesaid terms.