Omprakash Kawaduji Desai and ors. 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. heard learned counsel for the parties.2. the present letters patent appeal is directed against judgment of the learned single judge dated 1.4.2009 dismissing the petition under article 226 and 227 of the constitution of india. the appellant has challenged order dated 10.11.2008, by which the commissioner, amravati division, amravati exercised the powers of the state government under section 145(1-a) of the bombay village panchayats act, 1958 and dissolved the village panchayat, pimpalgaon on the ground that seven out of thirteen members have resigned and their resignations have been accepted. the section, under which the commissioner took action, reads as follows:145(1-a): if more than half the total number of seats in a panchayat have become vacant, the state government may, by order in the official gazette, dissolve such panchayat.the divisional commissioner invoked clause (1-a) which enables the exercise of powers by the state government if more than half the total number of seats in the panchayat have become vacant. there is no dispute that such was case when the power was exercised by the commissioner, in the present case.3. mr. mirza, learned counsel for the appellants, submitted that the learned single judge ought not to have upheld the order of commissioner, amravati since the commissioner has not given a finding that working of the village panchayat has become impossible. according to the learned counsel, it is in such circumstances alone that the state government can exercise powers and not merely because the number has fallen below half. it must be noted that there is no such condition imposed by the section and there is no warrant for reading something which is not there. it is true that section confers powers on the government which may be exercised at its discretion and there is no doubt that exercise of this power must be regulated by the principles of reasonableness and fairness as in case of administrative powers vested in the state. we, however, find, from the facts of the present case, that it cannot be said that power was exercised arbitrarily or unfairly. due notice was given to the members of the village panchayat before passing the order of dissolution. the submissions were heard from the members of the panchayat, seven of whom submitted that they have raised several complaints of corruption and irregularities in the meeting of the panchayat but in vain and they are not prepared to play role of onlookers and they, therefore, resigned. the commissioner has observed that the members were forced to take the steps in the interest of the village panchayat and in the interest of public. in the circumstances, the commissioner came to the conclusion that smooth working of the village panchayat is hampered and the village panchayat is liable to be dissolved.4. the learned single judge has referred to the reason given by the commissioner and has upheld the order. while dong so, it appears that certain xerox copies of the documents were submitted by members of the village panchayat who appeared as intervenors, in order to justify their resignations. the documents pertain to irregularities and alleged misappropriation in the functioning of the village panchayat. on this basis, mr. mirza, learned counsel for the appellant submitted that the learned single judge ought not to have taken into account the material, which was not produced before the commissioner, since the order of the commissioner can only be justified for the reasons stated therein and not on the basis of reasons contained in affidavits filed subsequently. he relied upon judgment in (commissioner of police, bombay v. gordhandas bhanji) : 1951 dgls (soft) 65 : a.i.r. 1952 s.c. 16 and (mohinder singh gill and anr. v. chief election commissioner, new delhi and ors.) : 1977 dgls (soft) 340 : a.i.r. 1978 s.c. 851. we find that no new justification was made out by the intervenors before the learned single judge. the justification was the same as given before the commissioner, though the documents in support of it may not have been filed before the commissioner. it is, thus, not possible to say that order of the commissioner was sought to be justified on the documents, which were not presented to the commissioner. mr. mirza, advocate also relied upon judgment of the division bench of this court for the proposition that it is necessary for the commissioner to record a finding that it would not possible for the panchayat to function except by dissolution and holding fresh elections. these observations were made by division bench in (shivaji maruti shingate and ors. v. state of maharashtra and ors.) : 2007(4) bom.c.r. 695 : 2007(5) mh.l.j. 109 where the state government refused to exercise discretion to dissolve the panchayat and instead considered it appropriate to hold elections. these observations were, thus, made while upholding the decision to hold elections and are not the ratio decidendi of the case. the commissioner, in the present case has made observations to the effect that a smooth working of the village panchayat is hampered. we consider this reason a valid reason. the section confers a wide latitude on the state government to take action in a variety of circumstances. it is not necessary that the powers can be exercised only where the functioning of the village panchayat became impossible. it can also be exercised when smooth functioning is hampered and, of course, more than half the total number of seats in the panchayat have become vacant in accordance with the provisions.5. in this view of the matter, we see no merit in the present letters patent appeal. the same is, therefore, dismissed. no order as to costs.