Pratap S/O Ramrao More Vs. the 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.r.k. batta, j.1. heard learned advocate for the applicant and learned a.p.p. for non-applicant.2. the applicant was convicted for offence under sections 145 and 146 of the railways act, 1989 and was sentenced to 20 days simple imprisonment on each count as also fine of rs. 400/- on the first count and fine of rs. 500/- on the second count. his substantive sentences are ordered to run concurrently. the applicant challenged the conviction in the court of session and the court of session dismissed the appeal. the applicant challenges the concurrent findings of two courts.3. learned advocate for the applicant has urged before me that even admitting the prosecution case in toto, no case of conviction under sections 145 and 146 of the railways act, 1989 is made out. since firstly the incident in question did not take place either in the railway carriage or upon any part of the railway, as required under section 145 of the said act and secondly at the time when the incident took place, it cannot be said that the assistant engineer was obstructed or prevented while in the discharge of his duties since at that time the assistant engineer was going to sit in the jeep in order to go to home. therefore, accordingly to the learned advocate for the applicant, the conviction and sentence on both counts is illegal in law and is required to be set aside.4. learned a.p.p. on the other hand, argued that the assistant engineer had gone for duty to biswa railway bridge and from there he was to sit in the jeep in order to go to home. this set of fact according to him would establish that the assistant engineer was obstructed or prevented by the applicant in the discharge of his duties. he also urged before me that even if sections 145 and 146 of the railways act is not applicable, the applicant is guilty for the offence under section 341, ipc and also under section 506, ipc since the applicant had threatened the assistant engineer, complainant (pw.1) that he should come to akola bazar and he would see him there.5. the prosecution case is that on 15-1-1996, at about 6-15 p.m., assistant engineer, complainant (pw-1) was going to sit in the front seat and at that time the applicant was trying to enter the jeep which was objected by the assistant engineer, complainant (pw-1). the applicant got down from the jeep and started shouting and threatened the complainant that let him come to akola bazar and he would see him. according to the complainant (pw.1), he had gone to biswa railway station for work and after completion of work, he came near the jeep for returning back home. this means that the complainant (pw.1) has already completed the discharge of his duties and he was only to return home and for that purpose he was sitting in the jeep. at that time, by no stretch of imagination, the complainant (pw.1) can be said to be on official duty. the question of application of section 146 of the railways act, which provides that if any person wilfully obstructs or prevents any railway servant in the discharge of his duties, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both, would not arise. the incident in question did not take place either in the railway carriage or upon any part of the railway and the question of section 145 being attracted does not arise at all. i am surprised that neither the judicial magistrate first class (rail-ways), bhusaval nor the additional sessions judge bestowed any attention on these aspects. until and unless the ingredients of offence under sections 145 and 146 of the railways act, 1989 are made out, the question of applicability of sections 145 and 146 would not arise at all. i do not, therefore, find any merit whatsoever in the submission made by the learned a.p.p. in this behalf. likewise his contention that the applicant should be convicted under sections 341 and 506 of the ipc is without any merit. the applicant was never charged for any offence under ipc nor the offences under section 341 or 506 can be said to, be minor offences in relation to sections 145 and 146 of the railways act, 1989 with which the applicant was charged. the conviction and sentence by the two courts is, therefore, illegal, erroneous and cannot be sustained.6. for the aforesaid reasons, revision is allowed. the judgments of two courts below holding the applicant guilty under sections 145 and 146 of the railways act, 1989 and imposing sentence on him are hereby quashed. the applicant is (ordered to be acquitted of the charges. fine, if any paid by the applicant, shall be refunded to him.