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2004 DIGILAW 147 (PAT)

Hari Krishna Sah v. State Of Bihar

2004-02-05

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of certiorari or for any other appropriate writ, order or direction for quashing the resolution of the District Legal Aid Committee, Purnea and the communication dated 22.3.1999 (Annexure-4) whereby a certificate has been granted for exemption to respondent no.4 for payment of the court fee in Title Suit No. 68 of 1993. 2. Short fact giving rise to the present application are that respondent no.4 hereinafter referred to as the plaintiff filed Title Suit No. 68 of 1993 impleading the petitioner and other persons as defendants seeking decree of permanent injunction from disturbing the plaintiffs possession over the land described in the schedule of the plaint. Further relief sought for by plaintiff was to restore possession of land described in Schedule II of the plaint from which he was forcibly dispossessed by defendant no. 1-petitioner here. Defendant no.1 appeared in the suit and pleaded that the plaintiff shall be liable for payment of ad valorem court fee and unless such fee is paid, the relief sought for by the plaintiff, cannot be adjudicated. During the pendency of the suit, the plaintiff filed application for amendment of the plaint which was contested by defendant no.1 and the learned Judge, in session of the matter, by order dated 15.11.1997, partly allowed the amendment petition. While doing so, the learned Judge observed that the suit is for adjudication of right, title and interest with consequential relief for injunction and recovery of possession which cannot proceed unless ad valorem court fee is paid. Accordingly, the learned Judge, directed the plaintiff to pay ad valorem court fee on the value of the suit property i.e. Rs. 60,000/-. The plaintiff challenged the said order before this court in Civil Revision No. 2031 of 1997 (Bhawa Shankar Biswas vs. Shri Hari Krishna Sah and ors) and by order dated 20th of April, 1998 (Annexure-2) , said revision application was dismissed. Plaintiff thereafter filed application for exemption from payment of the court fee claiming himself to be an indigent person. The plaintiff also filed application before the District Legal Aid Committee for granting him certificate for exemption from payment of the court fee in the suit. Plaintiff thereafter filed application for exemption from payment of the court fee claiming himself to be an indigent person. The plaintiff also filed application before the District Legal Aid Committee for granting him certificate for exemption from payment of the court fee in the suit. The application of the petitioner was considered by the District Legal Aid Committee in its meeting and its Secretary, by communication dated 22.3.1999, made to the Judge in seisin of the trial recommended to exempt the plaintiff from payment of the court fee. It is this communication of the Registrar-cum-Secretary of the District Legal Aid Committee, which has been challenged in the present application. 3. Mrs. Pallavi Mishra appearing on behalf of the petitioner submits that the impugned communication is completely without jurisdiction as the Committee has no power to exempt the court fee. It is contended that Regulation 20 of the Bihar State Legal Services Authority Regulation, 1998 framed in exercise of the powers conferred under section 29-A of the Legal Services Authority Act specifically bars aid in respect of court fee. She submits that notwithstanding the aforesaid provision, the Committee had granted the certificate for exemption of the court fee. She points out that the certificate has been granted by the Committee constituted under the Legal Services Authority Act and as such, the impugned communication is without any authority. 4. Mr. Nagendra Rai, appearing on behalf of the plaintiff-respondent no.4, however, submits that the very assumption of the petitioner that this communication has been issued by the District Legal Services Authority, is unfounded on fact and in fact, it has been issued by the District Legal Aid Committee constituted under the Bihar State Weaker Section Legal Aid Act, 1983 and the rule made thereunder. He contends that the certificate has been granted in the light of the notification issued under section 35 of the Court Fees Act. 5. The rival submissions necessitate examination of the provisions of the Legal Services Authority Act, Bihar State Legal Services Authority Regulation, Bihar State Weaker Section Legal Aid Act, Court Fees Act and the notification made thereunder. Section 35 of the Court Fees Act as amended by Bihar Act 20 of 1977, confers powers on the State Government to remit or reduce the court fees. Same reads as follows : "35. Section 35 of the Court Fees Act as amended by Bihar Act 20 of 1977, confers powers on the State Government to remit or reduce the court fees. Same reads as follows : "35. Power to remit or reduce court fees.-The State Government may, subject to such condition or restriction as it may think fit to impose, by order published in the official Gazette, reduce or remit in relation to all or any class of persons, in the whole or any part of the State, all or any of the fees mentioned in the First and Second Schedules to this Act and may in like manner cancel or vary such order." 6. The Governor of Bihar in exercise of the powers conferred under Section 35 of the Court-Fees Act issued Notification dated the 31st October, 1983 remitting the Court fees of persons who are eligible for legal aid in accordance with Section 17 of the Bihar State Weaker Section Legal Aid Act, 1983. Same reads as follows: "(56) No. S3-10-14/83-9882/F dated the 31st October, 1983.-In exercise of the powers conferred by section 35 of the Court-Fees Act, 1870 (VII of 1870), in its application to the State of Bihar and in partial modification of the orders contained in F.D.s S.O.no. 1207, dated the 19th August, 1981, the Governor of Bihar is pleased to make the remissions hereinafter set forth, hereby :- To remit the Court fees, Process fee and Vakalatnama fee for persons belonging to Scheduled Castes, Scheduled Tribes, Landless persons and such other persons whose annual income does not exceed Rs. 5,000 (Rupees five thousand) and who are eligible for legal aid in the entire State in accordance with section 17 of the Bihar State Weaker Section Legal Aid Act, 1983." 7 Thus the notification dated 31st of October, 1983 exempts the payment of court fees of such persons who are eligible for legal aid in the entire State in accordance Section 17 of the Bihar State Weaker Section Legal Act, 1983. Section 17 of the Bihar State Weaker Section Legal Aid Act, 1983 provides for persons who shall be eligible for legal aid. Same reads as follows: "17. Section 17 of the Bihar State Weaker Section Legal Aid Act, 1983 provides for persons who shall be eligible for legal aid. Same reads as follows: "17. Person eligible for aid.-Legal aid or advice may be given to persons who are bona fide residents of the State of Bihar and whose total annual income from all source, whether in cash or in kind, does not exceed rupees 9,000/-. Provided that the limitation as to annual income shall not apply to infirm person or persons belonging to Scheduled Caste and Scheduled Tribe and landless persons." 8. Section 19 of the Bihar State Weaker Section Legal Aid Act, 1983 provides for modes of legal aid and the same Breads as follows :- "19. Modes of legal aid.- Legal aid may be given under this Act in all or any of the following modes namely :- (a) Payment of court fees, process fees, expenses of witness and all other charges payable or incurred in connection with legal proceedings; (b) Representation by a Legal practitioner in a Legal proceeding ; (c) Supply of certified copies of judgments and orders of any legal proceeding; (d) Preparation of appeal paperbooks including printing and translation of documents in legal proceedings; (e) Any such legal aid which is consistent with the provisions of this Act and is deemed fit." From a plain reading of Section 19 of aforesaid Act, it is evident that the legal aid can be given for payment of court fees, process fees etc. Section 21 of the Bihar State Weaker Section Legal Aid Act, 1983 provides for seeking legal aid and the dicision thereon. Same reads as follows: "21. Application for legal aid.- (1)The application will be received in the office established by the Board or Committees which shall issue a receipt therefor: (2) The applicant shall have to take an oath before the Member-Secretary of the Committee as to the truthfulness of the facts mentioned in the application. Same reads as follows: "21. Application for legal aid.- (1)The application will be received in the office established by the Board or Committees which shall issue a receipt therefor: (2) The applicant shall have to take an oath before the Member-Secretary of the Committee as to the truthfulness of the facts mentioned in the application. (3) If at any stage the committee is in doubt as to any fact mentioned in the application given by the applicant the Committee shall have power to inquire into it in the prescribed manner and if the committee is of the opinion that the applicant has obtained legal aid fraudulently by decreasing his income and concealing the facts the Committee shall have power to recover the amount expended in aid from the application but the Committee will exercise this power when the suit is pending at any state. (4) The District Legal Aid Committee to which application is made under sub section (1) shall, subject to provisions of this Act make an order in such form as may be prescribed sanctioning the grant of legal aid to the applicant. (5) District Legal Aid Committee shall send a copy of the order granting legal aid to the aided person to the High Court in which legal proceeding has to be instituted or is pending for disposal and shall inform it to the Executive Committee forthwith." 9. Under Section 21 of the aforesaid Act, application for grant of legal aid shall be received in the office of the District Legal Aid Committee and the person seeking legal aid has to make an oath before the Member Secretary of the Committee. Thereafter, the District Legal Aid Committee is to make an order in such form as may be prescribed sanctioning the grant of legal aid to the applicant. It seems that after the petitioner filed application for grant of exemption from payment of court fees, he also filed application for grant of certificate by the District Legal Aid Committee who on consideration of the same, granted the certificate. 10. It seems that after the petitioner filed application for grant of exemption from payment of court fees, he also filed application for grant of certificate by the District Legal Aid Committee who on consideration of the same, granted the certificate. 10. It is relevant there to state that in view of the notification dated 31st of October, 1983 issued under Section 35 of the Court Fees Act, a person who is legible for legal aid, in accordance with section 17 of the Bihar State Weaker Section Legal Aid Act, 1983, shall be exempted from the payment of the court fees. In fact in view of the decision of this Court in the case of Chanda Nath vs. Janak Kishore Devi reported in 1992 (1) PLJR 760 for remission from payment of the court fees, certificate granted by the District Legal Aid Committee constituted under the Bihar State Weaker Section Legal Aid Act, 1983, is sine qua non. In the said case it has been observed as follows: "xxx This jurisdiction cannot be exercised by the Civil Court. Once a person is found to be entitled to legal aid under the said Act and he is so granted, he, as a matter of right, becomes entitled to get remission from payment of court-fees pursuant to the notification issued under Section 35 of the Court-fees Act, as referred to above. It was only for this reason that the Legislature itself has made it mandatory on the part of the Legal Aid Committee to send a copy of the certificate of eligibility in the statutory form B to the Court concerned, on receipt whereof, the Court concerned is left with no option than to grant remission of court- fees to the aided person." 11. Here in the present case, in view of the fact that the Civil Court has no jurisdiction to remit the court fee on its own, but shall have jurisdiction to do so only on the basis of the certificate granted by the District Legal Aid Committee that the plaintiff approached for the same. The Committee on consideration of the prayer of the plaintiff, granted him the certificate. The certificate so granted is on application filed under section 21 of the Bihar State Weaker Section Legal Aid Act, 1983. The Committee on consideration of the prayer of the plaintiff, granted him the certificate. The certificate so granted is on application filed under section 21 of the Bihar State Weaker Section Legal Aid Act, 1983. Hence, the whole assumption of the petitioner that it has been granted under the provisions of Legal Services Authority Act is absolutely misconceived. Once the certificate has been granted under the provisions of the Bihar State Weaker Section Legal Aid Act, in view of the notification dated 31.8.1983 made by the State Government in exercise of the powers under section 35 of the Court-fees Act, the plaintiff shall be entitled for the remission of the court-fees. I do not find any jurisdictional error in the impugned communication. 12. In the result, this writ application is dismissed with costs to be paid by the petitioner to plaintiff-respondent no.4, which I assess at Rs.550/-.