MOHAN MULJI Vs. SPL L A OFFICER BROACH
LAWS(GJH)-1966-3-11
HIGH COURT OF GUJARAT
Decided on March 08,1966

MOHAN MULJI Appellant
VERSUS
SPECIAL LAND ACQUISITION OFFICER BROACH Respondents

JUDGEMENT

P.N.BHAGWATI, M.U.SHAH - (1.) This group of appeals raises a short question in regard to payment of Court-fee on an application for a Reference made to the Collector under sec. 18 of the Land Acquisition Act. The facts giving rise to the appeals are identical and it would therefore be sufficient if we state the facts relating to First Appeal No. 163 of 1965. The appellant in this appeal is admittedly a member of a tribe deemed to be a scheduled tribe in relation to the State of Gujarat under Article 342 of the Constitution of India. It appears that certain land belonging to the appellant was acquired by the State of Gujarat under the provisions of the Land Acquisition Act and an inquiry was held by the Special Land Acquisition Officer for the purpose of determining the amount of compensation payable to the appellant in respect of such acquisition. The Special Land Acquisition Officer made an award dated 2nd March 1963 awarding a sum of Rs. 1378-27 nP. As and by way of compensation to the appellant but the appellant was dissatisfied with the award and he therefore made an application to the Special Land Acquisition Officer on 17th May 1963 for a reference under sec. 18 of the Land Acquisition Act objecting to the amount of compensation awarded and claiming a sum of Rs. 4 300 as and by way of compensation. The application did not bear any stamp under the Bombay Court-fees Act 1959 presumably because the appellant was of the view that by reason of the Notification No. CFA. 1061/3529-D dated 13th September 1963 the appellant was not liable to pay any court-fee on the application. On the application the Special Land 8 Acquisition Officer made a reference to the District Court Broach and the reference was received by the District Court on 22nd October 1963. The District Court sent the reference to the Civil Judge Senior Division Broach for disposal according to law When the reference came up before the learned Civil Judge for hearing a contention was raised on behalf of the State that the application of the appellant before the Special Land Acquisition Officer for a reference to the District Court was required to bear court-fee stamp of an amount equal to one half of ad-valorem fee on the difference between the amount awarded by the Special Land Acquisition Officer and the amount claimed by the appellant under Item 15 of Schedule I to the Bombay Court-fees Act 1959 and unless such court-fee was paid by the appellant the reference could not be proceeded with and was liable to be dismissed. The issue arising out of this contention of the State was tried by the learned Civil Judge as a preliminary issue and the learned Civil Judge accepted the contention of the State and held that the application of the appellant to the Special Land Acquisition Officer for a reference was liable to be a court-fee stamp under Item No. 15 of Schedule I to the Bombay Court-fees Act 1959 and he accordingly directed the appellant to pay deficit court-fee of Rs. 112-50 nP on or before 27th April 1964. The appellant did not pay the deficit court-fee directed by the learned Civil Judge and the learned Civil Judge therefore passed an order rejecting the reference under Order 7 Rule 11(c) of the Code of Civil Procedure. Similar orders rejecting the References under Order 7 Rule 11(c) of the Code of Civil Procedure were also passed by the learned Civil Judge in respect of the other references. Hence the present appeals against the orders passed by the learned Civil Judge rejecting the References.
(2.) There were three contentions urged by Mr. S. B. Majmudar learned advocate appearing on behalf of the appellants in support of the appeals and they were as follows:- (1) The Special Land Acquisition Officer discharging the functions of a Collector under sec. 18 of the Land Acquisition Act is a Civil Court discharging judicial functions and the applications made by the appellants to the Special Land Acquisition Officer were therefore applications filed in a Civil Court and consequently by virtue of the Notification No. CFA. 1061/3529-D dated 13th September 1963 the applications were not liable to bear any court-fee stamp under the Bombay Court-fees Act 1959 (2) On a true construction of the provisions of secs. 18 19 and 20 of the Land Acquisition Act the Special Land Acquisition Officer discharging the functions of a Collector is merely a conduit pipe through whom the application for a reference under sec. 18 is made to the District Court and the applications made by the appellants to the Special Land Acquisition Officer under sec. 18 were in effect and substance applications to the District Court and the Notification No. CFA. 1061/3529-D dated 13th September 1963 therefore governed the applications and the applications could be filed without payment of any court-fee stamp. (3) Even if the Notification No. CFA. 1061/3529-D dated 13th September 1963 did not take in an application to the Collector for a reference under sec. 18 of the Land Acquisition Act there was a subsequent notification issued by the Government of Gujarat on 14th June 1965 which amended the earlier notification so as to include within the scope and ambit of the earlier notification an application to the Collector for a reference under sec. 18 and the applications made by the appellants to the Special Land Acquisition Officer for a reference under sec. 18 were therefore exempt from payment of court-fee by virtue of this latter notification.
(3.) In order to appreciate these contentions it is necessary to refer briefly to some of the relevant provisions of the Bombay Court-fees Act 1959 Sec. 5 sub-sec. (1) provides that no document of any of the kinds specified as chargeable in the first or second schedule annexed shall be filed exhibited or recorded in any Court of Justice or shall be received or furnished by any public officer unless in respect of such document there has been paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. There are two schedules annexed to the Act but we are concerned here only with Schedule 1. Item 15 of Schedule I refers to application to the Collector for a reference to the Court and prescribes for such application court-fee of an amount equal to one half of ad-valorem fee on the difference if any between the amount awarded by the Collector and the amount claimed by the applicant according to the scale prescribed under Article 1 of Schedule I subject to a minimum fee of fifteen rupees. It is therefore clear that an application to the Collector for a reference under sec. 18 must bear court-fee stamp of an amount equal to one half of ad-valorem fee on the difference between the amount awarded by the Collector and the amount claimed by the applicant and if the application does not bear such court-fee stamp it cannot be received by the Collector. Sec. 40 Paragraph I makes this position abundantly clear by providing that no document which ought to bear stamp under the Act shall be of any validity unless and until it is properly stamped. Like all fiscal legislation this Act also contains a provision empowering the State Government to reduce or remit the court-fee payable on a document and that provision is to be found in sec. 46 which runs as under:- 46 The State Government may from time to time by notification in the Official Gazette reduce or remit in the whole or in any part of the territories under its administration all or any of the fees mentioned in the first and second schedules to this Act annexed and may in like manner cancel or vary such order. The Government of Gujarat in exercise of the powers conferred by sec. 46 issue the notification No. CFA. 1061/3529-D dated 13th September 1963 to which reference has already been made by us and this notification in its operative provision provided as follows:-.... the Government of Gujarat hereby remits the fees payable by members of such tribes or tribal communities or parts or groups within such tribes or tribal communities as are deemed to be scheduled tribes in relation to the State of Gujarat under Article 342 of the Constitution of India in respect of documents of any of the kinds specified in the first or second Schedule to the said Act to be filed executed or recorded in any Civil or Criminal Court. This notification on its plain language granted exemption from payment of court-fee only in respect of documents of any of the kinds specified in the First or Second Schedule to the Act to be filed executed or recorded in any Civil or Criminal Court. If there was any document to be filed before a public officer no exemption from payment of court-fee was granted in respect of such document. This was the state of the law when the present appeals reached hearing before us last April. The contention advanced on behalf of the State which found favour with the learned Civil Judge was that since exemption from payment of court-fee under this notification did not extend to documents to be filed before a public officer an application to the Collector for a reference was not within the exemption granted under the notification and the applications made by the appellants to the Special Land Acquisition Officer therefore required to bear court fee stamp. The appellants therefore applied to us for an adjournment of the appeals so as to enable them to move the Government for amending the notification so as to include specifically within the ambit of the exemption an application to the Collector. We accordingly adjourned the hearing of the appeals and it appears that thereafter the appellants moved the Government and the Government by a notification No. GH-K-107/CFA-1061/3529-D dated 14 June 1965 issued under sec. 46 of the Bombay Court-fees Act 1959 amended the earlier notification by adding at the end of the said notification the words and figures and in respect of an application specified under No. 15 in the first Schedule to the said Act. The question is whether the applications made by the appellants to the Special Land Acquisition Officer-could be said to be exempt from court-fee by reason of the notification dated 13th September 1963 or at any rate by reason of the amending Notification dated 14th June 1965;


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