Thota Sayyed and anr. Vs. Flag Officer Commanding and anr. - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - having reflected over unfortunate and peculiar facts and circumstances of the case we are satisfied that whatever is found payable on the basis of available material, the respondent s should be directed to pay compensation to the petitioners to that extent subject to petitioners approaching civil court for higher compensation. 36 /1 of village dabolim was badly damaged due to plane crash. 25,00,000/ -(rupees twenty five lakhs only). 5. the compound wall, gate, bore well, shed, sewerage line, septic tank, etc, were worth about rs. this report shows that the construction was of good quality and the rooms were provided with good quality marble or with porcelain tiles: electrical fittings of good quality were provided. we are satisfied that for the purpose of this writ petition, the valuation report of the assistant engineer, works division iv, pwd, government of goa, can form the basis for award of compensation to the petitioner s.lodha r.m., j.1. heard mr. m.s. sonak, the learned counsel for the petitioner s and mr. e.p. badrinarayan, the learned central government standing counsel for the respondents.rule, returnable forthwith. mr. badrinarayan waives service for the respondents. rule is heard finally at this stage. 2. the petitioners have prayed for issuance of writ of mandamus or an order or direction in that nature, commanding the respondents to pay compensation in the sum of rs. 75,00,000/- alongwith interest at the rate of 18% per annum from 1st october, 2002 for the total destruction caused to the petitioners' bungalow, compound wall and the land due to the crash of the aircraft belonging to the respondents.3. the petitioners are the owners in possession of plot nos. 32 and 35 both adjoining each other in survey no. 36/1 of dabolim village, mormugao taluka, south goa district. these two plots collectively ad measure 760 sq. mts. the petitioners started construction of the bungalow thereon in the year 2001 after obtaining requisite permissions from the planning and development authority (for short 'pda'), vasco da gama, and the village panchayat at chicalim, under the goa panchayat raj act, 1994. they also obtained prior approval for construction from the assistant engineer, public works department (for short two'), government of goa. for the purpose of construction of the bungalow the petitioners obtained loan in the sum of rs. 7,70,000/- from the vijaya bank, vasco da gama branch. it is the petitioners' case that they spent more than rs. 60,00,000/- on the construction of the bungalow and the compound wall. the occupancy certificate was obtained from the village panchayat on 26th september, 2002. as luck would have been, within five days of obtaining the occupancy certificate, on 1st october, 2002, an aircraft belonging to the respondents crashed into the said bungalow resulting in total destruction of the bungalow.4. when the matter came up before us on 30th august, 2005, in the light of the loss assessment report dated 19th may, 2004 made by the mamlatdar, we directed the respondents to deposit a sum of rs. 52,00,000/-with the registrar of this court by 12th september, 2005. we also permitted the respondents to file the reply, if they so desired. in compliance of our order dated 30th august, 2005 the respondents have deposited a sum of rs. 52,00,000/- and the said sum has been credited to the government treasury on 12th september, 2005. the respondents have also filed the reply affidavit.5. the respondents have set up a case that the claim of the petitioners is highly exaggerated, inaccurate and contrary to the material available with them. relying upon the balance-sheet of the petitioners as on 31st march, 2002, for the financial year 2002-2003, prepared on 29th october, 2002 after the crash, the respondents have stated that as per the said document, the value of the bungalow was rs. 14,50,000/- but shockingly in the balance-sheet for the for the financial year 2003-2004 as on 31st march, 2003, the cost of the construction of the bungalow has been inflated to rs. 55,35,538.54. in their reply the respondents have annexed the copies of : (a) estimated cost of construction based on technical approval given by the assistant engineer, pwd, government of goa dated 20th february, 2001; (b) estimated cost of construction as per chartered engineer and government approved valuer on the basis of the approved plans in respect of the said bungalow submitted to vijaya bank, vasco da gama dated 6th march, 2002; (c) bills/ receipts given by civil contractor engaged/ hired by the petitioners for three stages of construction and submitted to vijaya bank, vasco da gama; and (d) balance sheet for the financial year 2002-2003 as on 31st march, 2002. the respondents have submitted that as regards the loss assessment report prepared by the mamlatdar, the basis for the valuation has not been furnished until date to enable the respondents to examine the correctness thereof. the respondents, thus, submitted that the claim of rs. 75,00,000/- is without any legal basis. according to them the petition raises disputed questions of fact that would require proof by adducing evidence which perhaps cannot be done in extraordinary jurisdiction under article 226 of the constitution of india.6. that the petitioners' bungalow which was newly constructed came to be destroyed and rendered useless due to aircraft crash on 1st october, 2002 is not in dispute. that the aircraft belonged to the respondents is also not in dispute. it is also not in dispute that whatever of the bungalow was left was also demolished by the respondents to enable the board of enquiry to collect evidence. thus there is no dispute that the petitioners' newly constructed bungalow was totally destroyed in the aircraft crash that took place on 1st october, 2002. that the petitioners are entitled to the compensation for the loss occasioned to them due to crashing of the aircraft into their bungalow is not disputed by the respondent s. they dispute the quantum. it would have been proper if the parties agreed to compensation amount. the respondents are not agreeable for resolution of dispute regarding quantum of compensation through arbitral tribunal. to own a house is a cherished desire of many. on completion of the construction and the bungalow being ready for occupation, the petitioners' desire seemed to have been fulfilled. but as the destiny would have it; it was short lived. the newly constructed house was destroyed in air crash. the petitioner s made representations to the respondent s for paying them the compensation. those remained unheeded. they gave notice. but the petitioners grievance remained unredressed. for nearly three years, the petitioners' claim for compensation has remained in cold storage.the petitioners cannot be denied the compensation indefinitely by relegating them to the remedy of civil suit. having reflected over unfortunate and peculiar facts and circumstances of the case we are satisfied that whatever is found payable on the basis of available material, the respondent s should be directed to pay compensation to the petitioners to that extent subject to petitioners approaching civil court for higher compensation. 7. the petitioners seek to place heavy reliance on the loss assessment report dated 19th may, 2004 prepared by the mamlatdar of mormugao taluka. the said report reads thus:1. the bungalow belonging to mr. thota sayyed and mrs. shamshad sayyed situated in the property bearing survey no. 36 /1 of village dabolim was badly damaged due to plane crash. the plane was an indian naval air craft.2. there was extensive damage to the bungalow and the said bungalow was rendered uninhabitable due to the accident.3. the damage to the bungalow excluding the articles, furniture, fixture etc. inside the same is around rs. 22,00,000/- (rupees twenty two lakhs only).4. the articles, furniture, fixtures and other miscellaneous items which were inside the bungalow were worth about rs. 25,00,000/ - (rupees twenty five lakhs only).5. the compound wall, gate, bore well, shed, sewerage line, septic tank, etc, were worth about rs. 5,00,000/- (rupees five lakhs only)6. the total loss suffered by mr. thota sayyed and mrs. shamshad sayyed due to the naval air craft accident is around rs.52,00,000/- (rupees fifty two lakhs only)7. the above figures are approximate and have been arrived at after conducting local inquiry.8. the respondents contest the correctness of the loss assessment report prepared by the mamlatdar of mormugao taluka. their grievance is that despite the demand, the mamlatdar has not furnished the basis for his valuation. according to the respondents, the mamlatdar refused to furnish the report of the circle inspector dated 19th may, 2004. on a close scrutiny of the loss assessment report prepared by the mamlatdar of mormugao taluka, we find that the conclusion arrived therein that the owners suffered the total loss of rs. 52,00,000/- (rupees fifty two lakhs) is without any basis. the report does not indicate the material considered or proper enquiry made for reaching the conclusion. it is true that the newly constructed bungalow belonging to the petitioner s was hugely damaged in the air-craft crash and whatever of the bungalow was left was pulled down and razed to earth by the respondent s but then the total loss of around rs. 52,00,000/- arrived at by the mamlatdar ought to have some basis. we, therefore, find it difficult to accept the said report for the purposes of this writ petition.9. it is true that in the communication dated 20th february, 2001, sent by the office of the assistant engineer, sub- division iv, works division viii, pwd to the sarpanch of the village panchayat, chicalim, the estimated cost of construction was shown as rs. 10,87,345/-, but that was only the estimated cost before the construction had begun and, therefore, this document is not of much worth. in the report dated 6th august 2002, submitted by v.m. sharma, chartered engineer to the vijaya bank, the estimated cost has been shown to be rs. 11,97,145/-. the, report, too, is the estimate of the construction before the actual construction had begun and, therefore, of not much assistance.10. in the balance-sheet as on 31st march, 2002, the petitioner s have shown that an amount of rs. 14,50,000/- was spent towards construction of the bungalow which was under construction. this amount reflects what the petitioners had spent as on 31st march, 2002. the construction was completed in the month of september, 2002 and, obviously, more amount was spent by the petitioners for completion of the construction.11. then there is the report of the assistant engineer, sub-division iv, p.w.d., government of goa after the accident had occurred. in the reply affidavit filed by the respondents there is no challenge to the valuation report prepared by the assistant engineer, work division iv, pwd, government of goa. in the valuation report prepared by the assistant engineer, works division iv, pwd, it is recorded that the built up area of the bungalow was 353.12 sq.mts. and the porch area was 8.94 sq. mts. as a matter of fact the learned counsel for the respondent did not dispute that the constructed portion was about 360 sq. mts. this report shows that the construction was of good quality and the rooms were provided with good quality marble or with porcelain tiles: the sanitary fittings of high quality were provided. the porch columns were given artistic design. mangalore tiles were provided for the roof. the construction was of rcc. the frames for doors and windows were of teak wood and the heavier sections were used. electrical fittings of good quality were provided. m.s. grills were also fitted to the windows. there was concealed wiring. the construction was legal and authorized. this is how the assistant engineer, works division iv, pwd, government of goa calculated the cost of construction:residential bldgs:-r.c.c. framed structureupto 6 storages withhorizontal slab and3.20 m headroom(type i to iii) 5450.00/m2extra for inclined r.c.c.slab roof height ateaves 2.60m 110.00/m25560.00m2cost: 362.00 x 5560.00 = 20,12,720.00(a)extra provisions :-i) extra for mangalore tile cladding including base frame work on r.c.c. slopped roofroof area = 137.42 m2porch roof area 17.89 m2roof area 155.31 m2 x 160.00 - rs. 24,849.60ii) extra for special water proofing treatmentroof area..... 155.31 x 250.00 rs. 38,827.50iii) add for water tank 7.00 / litres. .....capacity ...3500.00 litres rs. 24,500.00iv) add 18% for concealed wiring on 'a'........ 3,62,289.60v) add 13% for water supply and sanitation a.....3,01,908.00vi) add 5% for external service connection a........ 1,00,636.00vii) add 4% for power plugs on 'a'....... 80,508.80viii) add 1% for architectural features on a.... 20,127.20_______________rs.29,66,366.70_______________12. the assistant engineer in his report then calculated the cost of the damaged compound wall which according to him was rs. 44.600/-. the cost of the compound wall was calculated thus: compound wall condition of the structurethe compound wall was constructed along the plot boundary of 118.00 m. the compound wall average height is about 2.00 m and above the wall g. i. fencing of 1.40 m was done. the compound wall was plastered. the width of the compound wall was 150mm.the compound wall had developed cracks on most of the places. it was totally demolished for a length of about 40.00m.the valuation is done only for the demolished portion of 40.00m and height of 2.50 m.area :- length of demolished portion of compound wall = 40.00 m.valuation :- based on plinth area rates for 1997 vide circular no.85/1/9 7- ssw -pwd dt. 8.8.97a) compound walls with 30 cms thick laterite stone masonary 1.50m.height with 40 cm x 40 cm pillars including cement plaster rm 875.00cost of compound walls = 40.00 x 875.00..........35,000.00(a)b) barbed wire fencing with rcc posts atevery 2.5m.centre embedded in cement concrete 1:3:6...... 1.40m trs.height............................... 315.00deduct for r.c.c. posts incement concrete (assumed) int. (-) 75.00rs. 240.00.cost of fencing = 40 x 240.00 = 9600.00(8)total cost of damaged compound wall of 40.00m. length= rs.35,000.00 + rs.9600.00= rs.44,600.0013. we find no justifiable ground to discard the valuation report submitted by assistant engineer, works division iv, pwd, government of goa. the valuation is based as per the schedule prepared by the pwd. the valuation report gives a complete and cogent basis for arriving at the valuation. there is no challenge to this valuation report in the reply affidavit filed by the respondents . the learned counsel for the respondent s also could not criticize the valuation report of the assistant engineer, works division iv, pwd. we are satisfied that for the purpose of this writ petition, the valuation report of the assistant engineer, works division iv, pwd, government of goa, can form the basis for award of compensation to the petitioner s. the valuation report is by the competent, independent and impartial government official and can be acted upon. as per the said report the cost of the bungalow alongwith the compound wall was about rs. 30,00,000/-. the petitioners are, therefore, entitled to a sum of rs. 30,00,000/- towards compensation for the loss occasioned to their newly constructed bungalow situated at plot nos. 32 and 35 in survey no. 36/1 of dabolim village at mormugao, goa. this obviously shall not preclude the petitioners from claiming higher compensation by approaching competent court of civil jurisdiction. 14. we accordingly dispose of the writ petition by the following order:(i) the registrar of this court is directed to permit withdrawal of an mount of rs. 30,00,000/- (rupees thirty lakhs only) by the petitioners out of the amount of rs. 52,00,000/- deposited by the respondents in compliance of the order of this court dated 30th august, 2005.(ii) the remaining amount of rs. 22.00.000/-(rupees twenty- two lakhs only) shall remain credited to the government treasury for a period of three months . if any suit is filed by the petitioner s for enhanced compensation within limitation for the loss caused to them and any interim order is passed by the civil court with regard to the remaining amount of rs. 22.00.000/- (rupees twenty- two lakhs only), the said amount shall be dealt with accordingly,(iii) on the other hand, if within three months no interim order is passed by the civil court in respect of the remaining amount of rs. 22.00.000/- (rupees twenty-two lakhs only) the said amount shall be refunded to the respondent by the registrar after the expiry of three months.15. the petitioners shall be entitled to the costs of rs. 10.000/ - (rupees ten thousand only) from the respondent s towards costs of the writ petition.rule is made absolute in the aforesaid terms.