Rangnath Kisan Gadekar and anr. Vs. Vaishali Chaturbhuj Shinde 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - the authorities below have failed to prove that the mutation entry no. 976 as well as entry 469 have been drawn and duly certified as per law. in the appeal of the respondent set aside the order of tahsildar sanctioning the mutation entry 976. on careful perusal of the findings recorded by the authorities, it clearly emerges that all three authorities have taken reasonable and plausible view.shinde s.s., j.1. this writ petition is directed against the final judgment and order dated 30.3.1994 passed by sub divisional officer, bhoom, in file no. 1993/ror/727, the order dated 23.3.1996 by the additional collector, osmanabad in case no. rts/69/93/94 and the order dated 16.12.1998 passed by the divisional commissioner, au-rangabad division, aurangabad in case no. 96/rev/r/143.2. the background facts of the case as under:the subject-matter of this writ petition is a mutation entry no. 976 by tahsildar on 8.7.1991 in respect of land gat no. 650 admeasuring 1-h 41-r situated at village mankeshwar in osmanabad district. the said land was originally owned by ganpati shinde and after his death, it was by inheritance came to his two sons viz. baban and chaturbhuj, now both the sons are dead. in the year 1988, an oral partition between deceased baban and chaturbhuj, in which narayan sought 3-h 2-r portion from land gat no. 650 was allotted to the share of chaturbhuj and remaining southern portion was given to the share of heirs of deceased baban.chaturbhuj sold the portion of 1-h 41-r tot he petitioner no. 1 for his medical expenses by registered sale-deed dated 14.11.1987 and mutation entry to that effect was made on 2.7.1986. respondent nos. 1 to 4 herein, who are l.rs. of chaturbhuj filed r.c.s. no. 35 of 1987 in the court of c.j.s.d. paranda on 16.11.1987 for the relief that the sale-deed executed between the parties are not binding on the legal heirs of deceased chaturbhuj and prayed that the suit came to be dismissed on 30.7.1999.on 18.6.1991 i.e. during pendency of the r.c.s. no. 35 of 1987, the petitioner no. 1 herein executed registered sale-deed in favour of petitioner no. 2 and mutation entry no. 976 was certified on 8.7.1991. respondent nos. 1 to 4 herein applied to the sub divisional officer, bhoom for cancellation of the mutation entry no. 976. the sub-divisional officer by his order dated 30.3 1994 set aside the mutation entry no. 976. aggrieved by the said order, the petitioner filed r.t.s. appeal no. 59 of 1994 before the additional collector, osmanabad and by his order dated 23.2.1996 the said appeal came to be dismissed. against the said order, the petitioner filed revision before divisional commissioner, aurangabad which came to be dismissed by order dated 16.12.1998. the petitioner filed another revision application before the state government. by order dated 7.11.2001, the same revision came to be dismissed as not maintainable. hence, this writ petition.3. learned counsel appearing for the petitioners submitted that the sale-deed in favour of petitioner no. 1 was never challenged by the respondents, and therefore, the further registered sale-deed in favour of the petitioner no. 2 cannot be questioned. it is further submitted that petitioner no. 1 also became absolute owner of the property on the basis of the registered sale-deed executed by chaturbhuj during his life time in the year 1983. it is further submitted that the petitioner no. 1 became absolute owner of the property, he validly transferred the said property to petitioner no. 2 and the revenue officers have duly certified the mutation entries to that effect. in view of this, it is not open for the revenue authority to cancel the mutation entry and its certification and that too after lapse of so many years. it is further submitted that the sale-deed was never challenged by the respondents and the petitioner no. 1 was competent to sale the suit land in favour of the petitioner no. 2, therefore, the said transaction dated 18.6.1991 in favour of petitioner no. 2. by the petitioner no. 1 cannot be doubted or set aside. according to the learned senior counsel, principle of lis pendency are not applicable in the revenue proceedings in any case that can be validly made under section 149 of the maharashtra land revenue code, 1966, learned counsel has invited my attention to the grounds in the petition and submitted that setting aside the mutation entry amounts to serious consequences including the consequences of suspending the sale-deed and such power is not vested in the revenue forum as contemplated under the provisions of the land acquisition act. it is further submitted that the suit filed by the respondent herein is already dismissed and therefore, in any case the order of cancellation of mutation entry cannot be permitted. the authorities below have failed to prove that the mutation entry no. 976 as well as entry 469 have been drawn and duly certified as per law. there is no any reason to cancel the same. therefore, the learned counsel submitted that this petition deserves to be allowed.4. though the contesting respondents are duly served and appearance is filed on their behalf, none appears for them.5. i have carefully perused the order passed by the sub-divisional officer, the order passed by the additional collector, osmanabad, the order passed by the divisional commissioner, aurangabad vision, aurangabad and the order passed by the secretary and officer on special duty (appeals), revenue and forest department and found that the s.d.o. bhoom, additional collector, osmanabad and commissioner, aurangabad division, aurangabad have recorded the findings that the mutation entry no. 976 was taken by the tahsildar on 20.6.1991 pending the r.c.s. no. 35 of 1987 without issuing notice to the respondents, though the present petitioner was defendant in the said suit and he was aware that the r.c.s. no. 35 of 1987 is pending, therefore, the authorities found that the tahsildar has certified mutation entry no. 976 without notice to the respondents herein, who are original plaintiffs in r.c.s. no. 35 of 1987 and therefore, s.d.o. in the appeal of the respondent set aside the order of tahsildar sanctioning the mutation entry 976. on careful perusal of the findings recorded by the authorities, it clearly emerges that all three authorities have taken reasonable and plausible view.6. therefore, in writ jurisdiction, i do not find any reason to interfere in the findings recorded by the courts below. there is no substance in the writ petition. hence, writ petition is dismissed. rule discharged. interim relief, stands vacated.7. it is made clear that the dismissal of the writ petition would not preclude the petitioner to apply afresh for mutation entry in the light of the pleadings of the petitioners that subsequently r.c.s. no. 35 of 1987 is dismissed.