iliyas Amir Maniyar 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 1. by way of present petition, the petitioner challenges the virus of rule 2-a(a)(iv) of rules which are called as maharashtra municipal councils, nagar panchayat (president election) rules, 1981. 2. shri bhandari learned counsel appearing for the petitioner submits that, by the said rules a reservation is provided for women belonging to general category, so also a women from reserved category like the scheduled caste, the scheduled tribes, o.gavai b.r., j.1. by way of present petition, the petitioner challenges the virus of rule 2-a(a)(iv) of rules which are called as maharashtra municipal councils, nagar panchayat (president election) rules, 1981.2. shri bhandari learned counsel appearing for the petitioner submits that, by the said rules a reservation is provided for women belonging to general category, so also a women from reserved category like the scheduled caste, the scheduled tribes, o.b.c., etc. shri bhandari further submits that a women form a class apart and further classification of reserved category i.e. women belonging to the scheduled caste, woman belonging to the scheduled tribe and women belonging to o.b.c. is not permissible under the constitutional scheme. relying on provisions of article 15(3) and 15(4), it is submitted that, reservation is provided under article 15(3) of constitution of india to women. so far as other reserved categories are concerned it is provided under article 15(4) of the constitution of india. therefore, he submits that, since the source of reservation for women and backward class is under different provisions of the constitution, overlapping reservation to that extent is not permissible under the constitutional scheme.3. on facts learned counsel for the petitioner submits that, in so far as the manvat municipal council, with which the petitioner is concerned, there would be reservation for women for continuous period of 10 years. he submits that, in some other municipal councils, there is reservation for women for 15 years. he submits that, this would deprive the male citizen of such municipal councils from holding the office of president of the municipal council for substantial period and as such, the impugned rule requires to be quashed and set aside. learned counsel for the petitioner further submits that, even from the perusal of article 243-t, it would reveal that reservation is provided for women only and not for women belonging to the scheduled caste, the schedule tribe, etc.4. article 15(3) is enabling provision which enables the state to make certain special provisions for upliftment of women. article 16(4) is a enabling provision which enables the state to make special provisions for the advancement of any social, educational, backward classes and for the scheduled caste and the scheduled tribe. the framers of the constitution of india, taking into consideration that due to historical reasons women in this country and the certain backward class's of citizens including the scheduled caste and the scheduled tribe were deprived from coming into main stream of the society, have made this aforesaid provision so as to give an opportunity to these classes to compete with the advanced classes.5. the parliament by 73rd amendment to the constitution and particularly by article 243-t, has provided reservation for the scheduled caste, the scheduled tribe and women. clause (4) of article 243-t also provides that the offices of chairpersons in the municipalities shall be reserved for the scheduled caste, the schedule tribes and women in such a manner as the legislature of a state may, by law, provide. it can be seen that, by taking recourse to clause 4 of article 243-t, the aforesaid provision which is challenged by the petitioner has been introduced. the same provision reads thus:2-a. reservation of offices of president and procedure for allotting the reserved seats to different municipal councils and nagar panchayats:(a) ....(i) ...(ii) ....(iii) ...(iv) not less than one-third (including the number of offices reserved for women belonging to the scheduled castes, scheduled tribes and the backward class of citizens) of the total number of offices to be filled in the state, shall be reserved for woman candidates; and such offices may be allotted by rotation to different municipal councils and nagar panchayats in the state. in determining such figure, a fraction shall be taken into consideration so as to ensure that not less than one-third of the total number of offices of presidents are reserved for the above categories are reserved for woman.6. the reservation provided for the scheduled caste, the schedule tribe and o.b.c. would be a vertical reservation. however, it could be seen that, the reservation for women would be horizontal reservation. it could not be in dispute that, the women belonging to all category, whether open or reserved are entitled to the benefit of the reservation as provided in the constitution. taking into consideration this aspect, reservation provided for the scheduled caste, the scheduled tribe and o.b.c. which is vertical reservation may overlap a reservation for women which is horizontal reservation. it can be said that in certain cases, the seats reserved for women may be available for a woman belonging to the open category and in another eventuality the seat could be available for a woman belonging to the reserved category.7. the apex court in the case of (indra sawhney v. union of india) 1992 dgls (soft) 768 : 1992 supp (3) s.c.c. 217, has held that horizontal reservation may overlap with the vertical reservation on certain point and it is permissible under the constitutional scheme. it is to be noted that the apex court in the said case was considering issue regarding the right of the citizens under article 16, which guarantees an equality of opportunity to all the citizens. in spite of said fundamental right being guaranteed, the apex court has found that such a situation is permissible.8. in the present case, we are dealing with the electoral rights. it is settled law that, the electoral rights are neither fundamental rights nor the common law rights, and the said rights are purely statutory in nature. unless the statute provides for any right a citizen, he cannot as a matter of right claim the same. in any case, from the perusal of sub-clause (4) of article 243-t, it can be seen that power has been given to the state to prescribe the manner in which the reservation provided has to be worked out. in that view of the matter, we do not find any force in the submissions made by the learned counsel for the petitioner, regarding challenge to the validity of aforesaid rule.9. we find that petitioner also lacks the locus to approach this court. the petitioner has not contested the election as councillor and as such there is no question of, he being elected and desirous of holding the post of chairperson. in any case as already held by us hereinabove, the right of any citizen would be subject to statute, which prescribes the manner of right to hold a electoral post. there is no merit in the petition, the same is therefore, rejected.