Bhagchand Masicharan Dhilor Vs. State of Maharashtra - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 24-5-1996. accordingly, the petitioner came to be released on furlough leave for two weeks on 27-5-1996. the petitioner on the expiry of furlough leave was expected to return to the prison on 11-6-1996 but he failed to return to the prison on the due date and over stayed for a total period of 2531 days. with this explanation, we are satisfied that the jail authorities particularly the superintendent nasik road, central prison, aurangabad failed to get prior approval of the deputy inspector general of prisons and the matter was closed at his end after getting the approval of the joint district and sessions judge, nasik which is not the requirement for imposing the impugned punishment.j.n. patel, j. 1. rule, returnable forthwith.2. ld. a.p.p waives service.3. this petition has been filed by the convict bhagchand masicharan dhilor through jail challenging the order passed by the superintendent of nasik road central prison for deducting his remission and denying him remission by ordering his removal from the register of remission permanently.4. it is a case of the petitioner that he has been convicted in sessions case no. 87 of 1986 by the additional sessions judge, jalgaon for having committed offence under section 302 of the indian penal code. by judgment and order dt. 4-3-1987, the trial court sentenced the petitioner to suffer imprisonment for life. while the petitioner was undergoing imprisonment, he applied for furlough which was sanctioned by the respondent competent authority and communicated to the superintendent of nasik road central prison vide letter dt. 24-5-1996. accordingly, the petitioner came to be released on furlough leave for two weeks on 27-5-1996. the petitioner on the expiry of furlough leave was expected to return to the prison on 11-6-1996 but he failed to return to the prison on the due date and over stayed for a total period of 2531 days. then the petitioner was taken in custody of chavani police station, malegaon, district nashik and produced in jail on 19-5-2003.5. after the petitioner was arrested and lodged in prison, a show cause notice to the petitioner came to be issued on 20-5-2003 under the prison rules, 1979, chapter 27, rule 26.2(a). though the petitioner was served with show cause notice, he did not submit any explanation to the show cause notice and, therefore, the superintendent, nashik road central prison submitted a proposal to the court of sessions on 1-7-2003 proposing a total cut of his earned remission of 1297 days and striking down his name from the remission register permanently. the said proposal was approved by the joint district and sessions judge, nasik.6. it is a case of the petitioner that the superintendent of nasik road central prison could not have imposed the proposed punishment merely by seeking approval of the joint district and sessions judge, nasik and the punishment has been imposed without taking prior approval of the deputy inspector general of prison, central region, aurangabad. the punishment of deduction of remission and striking down his name from the register permanently thus, has to be quashed and set aside.7. on being served with the notice, superintendent, nasik road central prison submitted a proposal for approval to the office of deputy inspector general of prison, central region, aurangabad vide letter no. jc/furlough/11360/2006 dt. 20-8-2006 and on submission of such a proposal, deputy inspector general of prisons granted his approval on 21 -8-2006 and made it clear that the punishment shall come in force and after the receipt of the said order by the prisoner.8. it is submitted on behalf of the prisoner that no post-sanction/approval can be granted by the deputy inspector general of prisons and, therefore, in view of the decision of this court in the case of shaikh mohobulla s/o noor mohammad v. state of maharashtra and anr.; the impugned order deserves to be quashed and set aside.9. this court while examining the petition specifically directed the deputy inspector general of prisons, central region, aurangabad to file his affidavit in reply to those specific plea taken by the respondents. in reference to the decision of this court in shaikh mohobulla s/o noor mohammad v. state of maharashtra and anr. 2006 (5) bom r 60, the deputy inspector general of prisons in response to the said direction filed his affidavit and has specifically stated in his affidavit dt. 7-9-2006 that there was a lapse on the part of the superintendent, nasik road central prison for causing delay in submission of proposal to the deputy inspector general of prisons, central region, aurangabad that he was called for explanation of the concerned officers and staff of the said prison and proposed to take suitable action against them. with this explanation, we are satisfied that the jail authorities particularly the superintendent nasik road, central prison, aurangabad failed to get prior approval of the deputy inspector general of prisons and the matter was closed at his end after getting the approval of the joint district and sessions judge, nasik which is not the requirement for imposing the impugned punishment.10. in view of the fact that the deputy inspector general of prisons has taken cognizance of this lapse on the part of the superintendent, nasik road central prison, we are not inclined to interfere with the punishment imposed on the prisoner for the very reason that the fact of overstaying his furlough leave is not disputed and the d.i.g. of prisons has specifically ordered that the punishment imposed on the petitioner prisoner would take effect from the date d.i.g. of prisons has granted his approval. we expect the d.i.g. of prisons would take necessary disciplinary action against the defaulting officials of the prison so that such lapse on the part of the jail officials are not repeated in future. with these observations, petition is dismissed. rule discharged.