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wp491914.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4919 OF 2014
Sanjeevkumar Harakchand
Kankariya, age: 55 years,
Occ: Agri. & Business,
R/o 77, Bhagawati Colony,
Aurangabad. Petitioner
Versus
1 Union of India,
through the Ministry of
Law and Justice,
New Delhi.
2 State of Maharashtra,
through the Ministry of
Finance, Mantralaya,
Mumbai32.
3 Abdul Aasif Abdul Jabbar,
age: 34 years, Occ: Agri. &
Business, R/o Motiwala Nagar,
Behind Dr.Jilla Hospital,
Aurangabad.
4 Abdul Jabbar Haji Mohammad
@ Ghasibhai, age: 59 years,
Occ: Agri. & Business,
R/o Motiwala Nagar, Behind
Dr.Jilla Hospital, Aurangabad.
5 The State of Maharashtra,
through Ministry of Law and
Judiciary, Mantralaya,
Mumbai. Respondents
Mr.Anand P.Bhandari, advocate for the petitioner
Mr.S.V.Kurundkar, Government Pleader for Respondents No.1, 2 &
5.
Respondents No.3 & 4 – formal parties.
CORAM : R.M.BORDE &
V.K.JADHAV, JJ.
DATE : 01st October, 2014
JUDGMENT (Per R.M.Borde, J.):
2 The petitioner is seeking a writ, order or direction to
the State of Maharashtra for refund of entire amount of court fees
to such of the litigants including the petitioner who have presented
proceedings in the Civil Court and those proceedings have been
disposed of in adaptation of any of the modes prescribed under
Section 89 of the Code of Civil Procedure, 1908. The petitioner also
seeks to quash notification dated 08.05.2013, issued by Law &
Judiciary Department, Government of Maharashtra, bearing
No.HCA.2010/C.R.87/D19, issued under Section 43(2) of the
Maharashtra Court Fees Act, 1959, on the ground that the
notification is contrary to provisions of Section 16 of the Court
Fees Act, 1870 read with Sections 20 and 21 of the Legal Services
Authority Act, 1987. The petitioner also seeks a declaration that
Respondent No.2 has no authority in law to issue a notification
contrary to the provisions of Section 16 of the Court Fees Act, 1870
and prays that all such notifications and rules, run contrary to the
aforesaid provisions, be quashed and set aside.
petitioner presented Special Civil Suit No.274 of 2013 in the Court
of Civil Judge, Senior Division, Aurangabad, praying for grant of
relief of specific performance of contract. Respondents No.3 & 4
resisted the claim by filing written statement. Learned 5 th Joint
Civil Judge, Senior Division, Aurangabad, before whom suit was
pending, considering nature of the suit, directed the parties to
adopt a mode for alternate dispute resolution prescribed under
Section 89 of the Code of Civil Procedure i.e. mediation. On
reference to mediator, the parties, after due deliberations and with
the aid of the mediator, resolved their dispute amicably and terms
of settlement were presented to the Court. The mediator also
submitted his report informing that the dispute is amicably settled
between the parties. On 07.04.2014, terms of compromise were
presented to the Court and ultimately the trial Court was pleased
to dispose of the suit and passed decree in terms of the
compromise. The petitioner requested for refund of total court fees,
however, learned 5th Joint Civil Judge, Senior Division,
Aurangabad, on consideration of notification issued by the
Government, referred to above, was pleased to permit refund of
only 50% court fees.
disposed of before commencement of hearing. Section 69 of the
Tamil Nadu Court Fees and Suits Valuation Act, 1955, also
provides for similar provision in respect of refund of 50% of the
Court fees. It is, thus, contended that the directions issued under
Order dated 08.05.2013, in observance of subsection (2) of Section
43 of the Maharashtra Court Fees Act, 1959, is legal and proper
and claim raised by the petitioner, in the instant petition, does not
deserve consideration.
89 Settlement of disputes outside the Court
(1) Where it appears to the Court that there exist
elements of a settlement which may be acceptable to
the parties, the Court shall formulate the terms of
settlement and give them to the parties for their
observations and after receiving the observations of
the parties, the Court may reformulate the terms of
a possible settlement and refer the same for
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement
through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred
(a) for arbitration or conciliation, the provisions of
the Arbitration and Conciliation Act, 1996 (26 of
1996) shall apply as if the proceedings for arbitration
or conciliation were referred for settlement under the
provisions of that Act;
7 It must be noted that after incorporation of Section 89
by virtue of Amendment Act of 1999, the provisions of Section 16 of
the Court Fees Act, 1870 came to be amended, which reads thus:
8 The procedure to be followed for conduct of mediation
and for Lok Adalats is provided for in the Legal Services Authorities
Act, 1987. Section 19 of the Act contemplates holding of Lok
Adalats for amicable settlement of the dispute. Section 20 provides
21 Award of Lok Adalat : (1) Every award of the
Lok Adalat shall be deemed to be a decree of a civil
court or, as the case may be, an order of any other
court and where a compromise or settlement has
been arrived at, by a Lok Adalat in a case referred to
it under subsection (1) of section 20, the courtfee
paid in such case shall be refunded in the manner
provided under the Court Fees Act, 1870.
Parliament.
List, but not including fees taken in any Court. List III of the
Seventh Schedule is Concurrent List in respect of which both the
Parliament as well as State Legislature shall have jurisdiction and
powers to make laws; and relevant Entry is at Sr.No.47 which
prescribes Fees in respect of any of the matters in the said List,
but not including fees taken in any Court.
11 Thus, so far as State of Maharashtra is concerned, the
subject relating to prescription of fees in the Courts, which is a
part of State Judiciary and referrable to the matters included in
List II of Seventh Schedule, is exercisable by the State Legislature.
The State of Maharashtra has enacted law relating to levy of court
fees, namely Maharashtra Court Fees Act, being Act No.XXXVI of
1959. In view of the said enactment, Court Fees Act, 1870 stands
repealed so far as State of Maharashtra is concerned. The matters
arising in the Courts in State of Maharashtra shall have to be
dealt with in accordance with Maharashtra Court Fees Act, 1959.
The Indian Court Fees Act, 1870 is no longer applicable to the
State of Maharashtra. We are supported by the Division Bench
judgment of this Court in the matter of Pushpabai Shankerlal
Sura and others Vs. The Official Liquidator, Sholapur Oil Mills
Ltd., reported in AIR 1970 Bombay 271. The Division Bench has
observed in paragraph 3 of the judgment as below:
“3 As we have recently observed in a similar case
L.P.A. No.44 of 1968, dated 15.10.1968 (Bombay), the
said Act has been recast in 1959 and the Indian
Court Fees Act, 1870, is no longer applicable to this
State.”
12 In view of above, the contention raised by the petitioner
in respect of applicability of provisions of Section 16 of the Court
Fees Act, 1870 and primacy of said provisions, does not deserve
consideration.
14 In the instant matter, the award has not been passed
by the Lok Adalat. Section 21 of the Legal Services Authorities Act,
1987 stipulates that every award of the Lok Adalat shall be deemed
to be a decree of Civil Court or, as the case may be an order of any
other Court and where a compromise or settlement has been
arrived at, by a Lok Adalat in a case referred to it under sub
section (1) of section 20, the Courtfee paid in such case shall be
refunded in the manner provided under the Court Fees Act, 1870.
On consideration of provisions of Section 21 of the Legal Services
Authorities Act, 1987, it is evident that an award of the Lok Adalat
shall be deemed to be a decree of Civil Court and the matters
wherein award has been passed by the Lok Adalat are governed by
the provisions of Legal Services Authorities Act and as such, in
such of those matters, refund of court fees shall be in accordance
with the provisions of Court Fees Act, 1870. It is to be noted that
in Section 21 of the Legal Services Authorities Act, 1987, provisions
contained in Court Fees Act, 1870, relating to refund of court fees,
are incorporated. Thus, it is a case of legislation by incorporation
and by virtue of such incorporation, provisions of Court Fees Act,
1870 relating to refund of court fees, are made applicable in
respect of award passed by the Lok Adalat. The analogy
applicable to the awards of Lok Adalat cannot be applied to the
decrees passed by the Courts on the basis of settlement, even
though same is reached in furtherance of a mediation taken up
under Section 89 of the Code of Civil Procedure. Once it is held
that provisions of Maharashtra Court Fees Act, 1959, are attracted,
it would be permissible for the State to issue notification
prescribing refund of court fees in exercise of powers conferred
under Section 43(2) of the Act. The notification dated 08.05.2013,
thus, cannot be said to be ultra vires the powers exercisable by the
State under Maharashtra Court Fees Act, 1959.
15 In view of the discussion as above, writ petition does
not deserve consideration and deserves to be dismissed and same
is accordingly dismissed.
extent of 100% in respect of the matters which are disposed of by
the Courts on adaptation of any of the modes prescribed under
Section 89 of the Code of Civil Procedure, 1908. Such a step would
be in consonance with the directives issued by the Supreme Court
in Salem Advocates Bar Association Vs. Union of India (supra),
as well as it would bring parity with the provisions of Section 21 of
the Legal Services Authorities Act and Section 16 of the Court Fees
Act, 1870. Thus, in order to bring uniformity in the matter of
refund of court fees and to eliminate discrepancies so far as
matters disposed of in view of the award passed by Lok Adalat;
and such of those matters which are disposed of in terms of the
settlement arrived at on the basis of observance of any of the
modes prescribed under Section 89 of the Code of Civil Procedure,
a direction needs to be issued by the State of Maharashtra to take
effective steps. Such a positive move will also give boost to the
movement of Alternate Disputes Resolution, which, in fact, curtails
precious time of the Court as well as avoids unnecessary and
prolonged indulgence in litigation before the Court. We hope and
trust that RespondentState would consider this suggestion
earnestly and take measures expeditiously.
17 Rule stands discharged. There shall be no order as to
costs.
Copy of this judgment be forwarded to the Principal
Secretary, Law and Judiciary Department, Government of
Maharashtra, for necessary compliance.
V.K.JADHAV R.M.BORDE
JUDGE JUDGE