Sunil S/O Manikrao Aparadhe Vs. State of Maharashtra 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 246. 7. we have considered the contentions canvassed by the respective counsel for the parties, perused the provisions of section 308 of the municipalities act as well as the judgment referred to hereinabove. 10. so far as the decision cited and relied on by the learned counsel for the intervenor in this regard referred to above is concerned, in para 14 this court has clearly observed that;d.d. sinha, j.1. rule, made returnable forthwith by the consent of the parties.2. heard mr. rajeev madkholkar, learned counsel for the petitioner, mr. t.r. kankale, learned assistant government pleader for respondents no. 1 and 2 and mr. a. j. thakkar, learned counsel for the intervener.3. the instant writ petition is directed against the order dated 17-8-2005 issued by the collector in exercise of power under section 308 of the maharashtra municipalities, nagar panchayat and industrial township act, 1965 (for short, municipalities act) whereby resolution no. 7 passed in the general body of municipal council, akot dated 17-5-2005 granting approval to the tender for repairs and maintenance of street light, tender for electrification under the integrated urban development scheme and tender for lifting debris, etc. was set aside/cancelled.4. mr. madkholkar, learned counsel for the petitioner challenged the impugned order primarily on the ground that the collector does not have either power or jurisdiction to cancel the said resolution passed by the municipal council. the power which is vested in the collector is only to suspend the resolution. learned counsel further contended that the impugned order cannot be sustained in law in view of the provisions of section 308 of the municipalities act, and therefore, needs to be quashed and set aside.5. mr. kankale, learned assistant government pleader, on the other hand contended that as per the provisions of sub-section (3) of section 308 of the municipalities act, the municipal council has already forwarded the statement to the regional director of municipal administration for modification and the same is pending before the regional director for taking decision in this regard. learned a.g.p. further prayed that in the instant case the regional director of municipal administration may be directed to take a decision as per section 308(3) of the municipalities act.6. mr. thakkar, learned counsel for the intervenor adopted the contentions canvassed by mr. kankale, learned assistant government pleader and in order to substantiate the contentions, reliance is placed on the judgment of this court in the case of syed kasim v. additional commissioner, amravati reported in 2003(1) mh.l.j. 246.7. we have considered the contentions canvassed by the respective counsel for the parties, perused the provisions of section 308 of the municipalities act as well as the judgment referred to hereinabove.8. it is not at all in dispute that in view of section 308, the collector is only entitled if, in the opinion of the collector, the execution of any order or resolution of the municipal council is causing or is likely to cause injury or annoyance to the public or is against public interest or to lead to a breach of the peace or is unlawful, for the reasons given in writing under his signature is only vested with the power to suspend the execution of such resolution or order. the plain reading of sub-section (1) of section 308 makes it crystal clear that the jurisdiction vested in the collector in view of sub-section (1) of the section 308 of the municipalities act is only to suspend the order/resolution in case of contingencies mentioned in sub-section (1) exist and it does not give power to the collector either to cancel or set aside the resolution.9. in the instant case it is not in dispute that in exercise of power under section 308(1) of the municipalities act, the collector vide order dated 17-8-2005 set aside/cancelled the resolution no. 7 passed in the general body of municipal council, akot on 16-5-2005. the order passed by the collector is without jurisdiction and is completely inconsistent with the provisions of sub-section (1) of section 308 of the municipalities act, and therefore, cannot be sustained in law. the statement forwarded by the municipal council for modification, which is pending before the regional director of municipal administration does not validate illegal action of the collector of cancelling resolution of the municipal council since the collector does not have jurisdiction to do so. in the instant case since we have quashed and set aside the order of the collector cancelling resolution passed by the municipal council, proceedings initiated under sub-section (3) of section 308 of the municipalities act by the municipal council before the regional director of municipal administration do not survive.10. so far as the decision cited and relied on by the learned counsel for the intervenor in this regard referred to above is concerned, in para 14 this court has clearly observed that; '...it is no doubt true that provisions of section 308(1) of the act does not empower the collector to set aside the resolution but he is entitled only to suspend the same and therefore, the additional commissioner was justified in modifying the order of the collector to that extent vide order dated 29-6-1991....'11. the conclusions recorded by us in the present judgment are completely consistent with the law laid down by this court in the above referred judgment. hence, for the reasons stated hereinabove, the order dated 17-8-2005 passed by the collector is quashed and set aside. it is open to the collector to reconsider the issue afresh and pass appropriate order according to the powers vested in him under section 308(1) of the municipalities act.12. rule is made absolute in the above terms with no order as to costs.