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1962 DIGILAW 37 (ORI)

JURI SABAT v. BIDYADHAR ALIAS BANSHIDHAR SABAT

1962-03-27

R.L.NARASIMHAM, S.BARMAN

body1962
JUDGMENT : Narasimham, C.J. - This is a second appeal to this Court under Sub-section (2) of Section 44 of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act No. 11 of 1952 hereinafter referred to as the Act) against the appellate order of the Commissioner of Hindu Religious Endowments Act passed under Sub-section (1) of Section 44 of the Act. The appeal was in the file of a single Judge of this Court (Justice G.C. Das) before whom a question arose as to whether certified copies of the orders passed under the Act by the Assistant Endowments Commissioner and the Endowments Commissioner could be validly filed before this Court without payment of the fee (some what inaccurately described as ?authentication fee?) as required by Article 9 of schedule I to the Court Fees Act. The learned single Judge has referred this question to a Division Bench for an authoritative decision. 2. Section 4 of the Court Fees Act prohibits the High Court, while exercising its appellate jurisdiction over orders passed by "courts subject to its superintendence" from receiving, or allowing to be filed or exhibited or recorded, any document of the kinds described in the First and Second Schedules to the Court Fees Act, unless the fee in respect of that document as specified in the aforesaid Schedules is paid. A Division Bench of this Court has held in Ramakrushna v. Ramachandra ILR 1958 Cutt 686 that both the Assistant Endowments Commissioner and the Endowments Commissioner while exercising powers u/s 41 and under Sub-section (1) of Section 44 of the Act respectively function as ?courts?. Article 227 of the Constitution confers on the High Courts powers of superintendence over all courts within its territorial jurisdiction. There can thus be no doubt that both the Assistant Endowments Commissioner and the Endowments Commissioner while exercising powers under the aforesaid sections of the Act, are courts subjects to the superintendence of the High Court as required by Section 4 the Court Fees Act. 3. The Appellants tiled before this Court certified copies of (1) the order passed by the Assistant Commissioner u/s 41 of the Act and (2) the order passed by the Commissioner on appeal under Sub-section (1) of Section 44 of the Act but it is admitted that the fee prescribed in Section 4 of the Court Fees Act has not been paid in respect of these copies. These have been certified to be true copies by an authorised officer in the office of the Commissioner of Religious Endowments The sole question therefore is whether notwithstanding the fact that these orders have been certified to be true copies by the competent authority this Court can refuse to allow them to be filed unless the fee indicated in Article 9 of Schedule I to the Court Fees Act is paid. 4. On behalf of the Appellants it was contended that the Act and the Rules framed thereunder (Orissa Hindu Religious Endowments Rules 1959) contain exhaustive provisions as regards fees payable for issuing certified copies of orders passed under the Act and once such fees are paid and certified copies are obtained from the proper authority (they being public documents) this Court must allow the copies to be filed by virtue of Section 77 of the Evidence Act notwithstanding the provisions of Section 4 of the Court Fees Act or the fees prescribed in the First Schedule to that Act. 5. Section 77 of the Act directs the Endowments Commissioner to grant copies of proceedings under the Act on payment of the prescribed fee and further says that the copies shall be certified as true copies by the authority authorised by the Commissioner. Clause (g) of Sub-Election (2) of Section 76 of the Act confers rule making power on Government in respect of grant of certified copies and the fees to be levied thereon. Rules 51, 52, 53, 54 and 55 of the Orissa Hindu Religious Endowments Rules 1959 also contain detailed provisions for grant of certified copies on payment of the prescribed fees. Hence, if as a matter of construction it can be held that the provisions of the Act and the Rules are exhaustive on the subject so as to over-ride the provisions of the Court Fees Act where there is a conflict between the two Acts, the aforesaid contention of the Appellant may prevail. 6. Hence, if as a matter of construction it can be held that the provisions of the Act and the Rules are exhaustive on the subject so as to over-ride the provisions of the Court Fees Act where there is a conflict between the two Acts, the aforesaid contention of the Appellant may prevail. 6. On behalf of the State of Orissa however it was contended that though the Act and the Rules are exhaustive so far as fees payable in respect of proceedings before the Endowments Commissioner and his subordinate officers are concerned, nevertheless so far as fees payable in respect of proceedings before the High Court are concerned, Section 4 of the Court Fees Act would come into operation, and both the enactments should be construed together. This argument appears to be convincing . 7. The only section in the Act where there is a reference to the "Court Fees Act" in Section 71 which expressly says that "notwithstanding anything contained in the first or second schedule to the Court Fees Act (Act VII of 1870) the proper fees for documents described in columns (1) and (2) of the Schedule shall be its fees indicated in column (3) thereof. The Schedule to the Act does not say anything as regards fees payable in respect of the filing before the High Court of copies of orders passed by the Endowments Commissioner or the Assistant Endowments Commissioner. It only deals with court fees payable on petitions filed before various authorities. Hence Section 71 will not be of any help to the Appellants excepting that section, there is no other section in the Act which contains the non obstinate clause "Notwithstanding anything contained in the first or second schedule to the Court Fees Act". Hence, when the Legislature, while expressly excluding, in Section 71 of the Act, the provisions of the Court Fees Act, deliberately omitted to provide for such exclusion, in Section 77 or Section 76(2)( g) of the Act which deal with the grant of certified copies, the reasonable inference would be that in respect of copies of proceedings before Endowments commissioner or the assistant Endowments Commissioner referred to in Section 77 of the Act the provisions of the Court Fees Act should be taken as supplementary and as not having been impliedly repealed. Moreover Section 4 of the Court Fees Act is an express provision dealing with filing of documents before the High Court whereas the Act contains no provision so far as filing of copies in the High Court is concerned. Hence there is really no conflict between the two and both the Acts should be construed harmoniously as one supplementing the other. 8. Reliance on Section 77 of the Evidence Act is also futile. It is true that by virtue of that section certified copies of public documents may be filed in proof of the contents of such documents. But the Evidence Act deals with rules of evidence and does not either impliedly or expressly repeal the provisions of any other statute dealing with payment of fees on certified copies filed before law courts. Hence Section 77 of the Evidence Act should also be construed harmoniously along with Section 4 of the Court Fees Act as one supplementing the other. 9. It is true that the Government of Orissa in their notification No. 17967-J(C) dated 23-8-1943 remitted the fee chargeable under Articles 6, 7 and 9 of Schedule I of the Act on copies filed by Civil or Criminal or Revenue Courts, but that notification further stated that this remission would not apply to copies when filed exhibited or recorded in any Court of justice or received by any public officer. Here the Appellant wanted to file copies of the orders of the Commissioner and the Assistant Endowments Commissioner, before the High Court and hence the aforesaid exemption will not apply in their favour. 10. For these reasons I must hold that the fees indicated in Article 9 of the First Schedule to the Court Fee Act must be paid by the Appellants before the certified copies of the orders of the Commissioner and Assistant Endowments Commissioner are permitted to be filed in this Court. We make no order as to costs. Barman, J. 11. I agree.