Shri Nandkishore Laxminarayan Agarwal Through Power of Attorney Ghanshyam Dhanraj Gupta Vs. the Union of India (Uoi), Through the Standing Counsel, - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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 is a writ petition which challenges the order of attachment passed by the assistant commissioner and recovery officer, employees provident fund organization, maharashtra and goa. by its order dated 14.08.1996, it attached the property of respondent no. 4 that was purchased by present petitioner in the auction sale held by respondent no. 3 bank on 23.07.1996. the petitioner paid amount of rs. 31,35,000/-. as per the attachment order the attachment was for a sum of rs. 3,63,230/-. said amount is said to be deposited under protest on 20.08.1996. according to the petitioner, issuance of recovery certificate and attachment by the order dated 14.08.1996 is illegal and needs to be quashed and set aside.2. heard learned advocate shri marlapalle for the petitioner. he has argued that, what were purchased were dead assets. the factory was closed long back and therefore it is not an establishment and section 17b of the employees of the provident fund and miscellaneous provisions act, 1952, (for short 'e.p.f. act'), is not applicable. section 17b of the e.p.f. act is as follows:17b. liability in case of transfer of establishment. where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision of this act or the scheme or the pension scheme or the insurance scheme, as the case may be, in respect of the period up to the date of such transfer: provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.3. the words used is not 'employer' so far as transferee is concerned, but the word 'person' is used with reference to transferee. the transfer can be of whole of the establishment or part and the liability of transferor and transferee of establishment is said to be joint and several. admittedly, amount of rs. 3,63,230/- was due towards contribution of employees of respondent no. 4.4. the learned advocate for the petitioner argued that 'industrial establishment' is defined under section 25l of the industrial disputes act, but as the definition of 'industrial establishment' under section 25l of the industrial disputes act states that 'industrial establishment' means a factory as defined in clause (m) of section 2 of the factories act, 1948. under the factories act, 'factory' is defined under clause (m) of section 2 as any premises including precincts thereof where 10 or more workers are working, or were working at any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on.5. so, it is argued that manufacturing process should be carried on. when the factory assets were purchased it were junk assets/dead assets. no manufacturing activity was going on. if, we consider provisions of the e.p.f. act, particularly section 1(3), idea is not only applying the act to a factory, but also to other establishments employing ten or more persons. as preamble discloses, the act is enacted to provide for the institution of provident funds, pension fund and deposit linked insurance fund for employees in factories and other establishments. in the statement of objects and reasons, the situation in which the act came into force are discussed. one thing is clear that under the e.p.f. act, employer is also liable to contribute to the provident fund along with employees or workmen and the funds so collected by the employer are to be remitted to the provident fund authorities as per section 38 of the act. section 17b of the e.p.f. act is made for protecting the interest of employees.6. in the facts and circumstances of the case, it does not appear from reading provisions of the e.p.f. act that a factory should be running when attachment or other steps for recovery of contribution payable under the e.p.f. act are contemplated by the authorities. there is no express provision in the act, which lays down as precondition that the factory must be running before the provident fund authorities would resort to attachment of property.7. in the facts and circumstances of the case, in my opinion, this is not a case where any interference in the extraordinary jurisdiction, under articles 226 and 227 of the constitution of india, is called for. however, it is made clear that if the amount of rs. 3,63,230/- is already deposited under protest, present petitioner will be entitled to reimbursement from previous employer of respondent no. 2.8. with these observations, this writ petition is dismissed. rule discharged.