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2008 DIGILAW 619 (GAU)

Shyam Sunder Bhartia v. Accountant General

2008-08-25

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The issues being common and arising out of the aforementioned two appeals preferred against the judgment and order dated 3.5.2006 passed by the learned Additional District Judge, Kamrup, Guwahati in Reference Case Nos. 17 of 2005 and 18 of 2005 pertaining to the Land Acquisition Case No. 21/1991 of Kamrup (Metro.), these were heard analogously and are being disposed of by this order. 2. I have heard Mr. T. Islam, learned Counsel for the applicants in Misc. Case Nos. 4380/07 and 4381/2007 who incidentally are the Appellants, as well as Mr. M.R. Pathak, learned Counsel for the applicants in Misc. Case Nos. 3295/07 and 3296/07 Respondents in the appeals. 3. The admitted background of facts needs narration in brief. The Collector of Kamrup acquired a plot of land measuring about 38 Bighas adjacent to the land of the Respondents in the aforementioned appeals and situated at Village Borsojai, Mouza-Beltola, District-Kamrup under Guwahati Municipal Corporation, Ward No. 34 for the purpose of construction of Staff Quarters of the Accountant General (A and E) Assam with notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 ('the Act'). This was in the year 1989 in LA Case No. 5/1987. The Collector determined the market value of the acquired land at @Rs. 20,000 per katha on which some owners being aggrieved/prayed him to cause a reference to be made under the Act. In Reference Case No. 24/1991, the learned Additional District Judge, Kammp/Guwahati enhanced the market value of the acquired land to Rs. 1,00,000 per katha. Against the said decision, three appeals were filed before this Court, namely- (1) First Appeal No. 61/1996 by the Accountant General (A and E), Assam; (2) First Appeal No. 64/1996 by the Collector, Kamrup; (3) Cross Objection No. 7/1996 by the Claimant/Reference Petitioner, namely, Bholaram Agarwal. 4. This Court by its common judgment and order dated 15.5.2000 dismissed all the proceedings and sustained the determination made by the learned Reference Court. Review Petition No. 95/2000 filed by the Accountant General (A and E), Assam seeking reconsideration of the decision dated 15.5.2000 was rejected on 16.2.2001. The Accountant General (A and E) took the matter before the Apex Court in SLP (C) No. 1804-18085 of 2001 assailing the judgment and order dated 15.5.2000 as well as the order dated 16.2.2001. Review Petition No. 95/2000 filed by the Accountant General (A and E), Assam seeking reconsideration of the decision dated 15.5.2000 was rejected on 16.2.2001. The Accountant General (A and E) took the matter before the Apex Court in SLP (C) No. 1804-18085 of 2001 assailing the judgment and order dated 15.5.2000 as well as the order dated 16.2.2001. The Apex Court by its order dated 23.2.2004 dismissed the SLP upholding the computation of the market value at Rs. 1,00.000 per katha. 5. In the meantime, to occasion the expansion of the project already undertaken, the Collector of Kamrup issued notifications dated 18.5.1992 and 29.3.1993 in L.A. Case No. 21/1991 under Sections 4 and 6 of the Act respectively for acquiring an area of land measuring 13 bighas, 3 kathas and 1 lacha of the same village including the land of the applicants in Misc. Case Nos. 3295/2007 and 3296/2007. The lands of the said applicants which are adjacent to those in Land Acquisition Case No. 5/1987 were taken possession of by the Collector, Kamrup on 19.9.1994 and thereafter handed over to the acquiring department. 6. The Collector of Kamrup again computed the market value of the land so acquired at Rs. 20,000 per katha and awarded additional compensation @ 12% under Section 23(1A) and Solatium 30% under Section 23(2) of the Act. Being aggrieved, some of the land owners caused references to be made which were eventually registered as Reference Case Nos. 55, 56, 57 and 58 of 1995 in the court of the Additional District Judge, Kamrup, Guwahati who, by a common judgment and order dated 4.5.1999 enhanced the market value of the acquired land to Rs. 60,000 per katha and awarded additional compensation and solatium with statutory interest under the Act. Though the applicants did not join the aforementioned references, they thereafter submitted an application under Section 28A of the Act on 29.7.1999 for re-determination of the market value of their land in terms of the adjudication made by the learned reference Court. 7. While their aforesaid application was pending, Respondent Bholaram Agarwal, claimant Petitioner of Reference Case No. 58/1995 whose land was covered by Dag No. 684 as that of the applicants, preferred an appeal being Land Acquisition Appeal No. 72/1999 before this Court being aggrieved by the judgment and order dated 4.5.1999. 7. While their aforesaid application was pending, Respondent Bholaram Agarwal, claimant Petitioner of Reference Case No. 58/1995 whose land was covered by Dag No. 684 as that of the applicants, preferred an appeal being Land Acquisition Appeal No. 72/1999 before this Court being aggrieved by the judgment and order dated 4.5.1999. Having regard to the valuation assigned to the appeal, the same was heard the learned Single Judge of this Court and by judgment and order dated 10.8.2000 the same was disposed of in terms of the decision dated 15.5.2000 passed in First Appeal Nos. 61 and 64 of 1996 and Cross Objection No. 7/1996 quantifying the market value of the land involved therein to Rs. 1,00,000 per katha and Rs. 10,000 towards jirat together with other statutory benefits. 8. The Accountant General (A and E) Assam also preferred four appeals being Regular First Appeal Nos. 39, 40, 41 and 42 of 2000 against the judgment and order dated 4.5.1999 passed in Reference Case Nos. 55, 56, 57 and 58 of 1995. All these appeals were placed before the Division Bench of this Court considering the valuation thereof. The First Appeal 41/2000 incidentally was against the same judgment and order dated 4.5.1999 passed in Reference Case No. 58/1995 against which land Acquisition Appeal No. 72/1999 as aforementioned had been preferred by Sri Bholaram Agarwal and disposed of on 10.8.2000 by a learned Single Judge of this Court. However, as this appeal before the Division Bench was sub judice, the judgment and order passed by the learned Single Judge was not given effect to and no decree pursuant thereto was also prepared. 9. By judgment and order dated 10.5.2005, this Court dismissed the Regular First Appeal 41/2000 sustaining the market value of land @ Rs. 1,00,000 per katha. A decree in terms of the judgment and order dated 10.8.2000 passed in Land Acquisition Appeal No. 72/1999 by the learned Single Judge was thereafter prepared on 15.6.2005. The Accountant General (A and E) Assam thereafter paid the decretal amount on 16.5.2005 in Money Execution Case No. 1/1991 instituted by Sri Bholaram Agarwal in terms of the judgment and order dated 10.5.2005 passed in RFA No. 41/2000 and order dated 4.5.1999 passed in Reference case No. 58/1995. 10. The applicants in Misc. Case Nos. The Accountant General (A and E) Assam thereafter paid the decretal amount on 16.5.2005 in Money Execution Case No. 1/1991 instituted by Sri Bholaram Agarwal in terms of the judgment and order dated 10.5.2005 passed in RFA No. 41/2000 and order dated 4.5.1999 passed in Reference case No. 58/1995. 10. The applicants in Misc. Case Nos. 3295/2007 and 3296/2007 thereafter on 12.7.1995 filed an application before the Collector of Kamrup on 29.7.1999 in addition to their earlier application under Section 28A for enhancement of the value of their land @ Rs. 1,00,000/- per katha. Their application having been rejected, the applicants moved the Collector, Kamrup under Section 28(3) of the Act for referring the matter to the Reference Court for proper adjudication. The same being done, the proceeding was registered as Reference Case Nos. 17/2005 and 18/2005 in the Court of District Judge, Kamrup, Guwahati and were transferred to the Court of the learned Additional District Judge, Kamrup, Guwahati for disposal. The applicants (Applicants in Misc. Case Nos. 4380/07 and 4381/07) resisted the references. Eventually, the Reference Court by judgment and order dated 30.5.2006 determined the market value of the acquired land of the applicants @ Rs. 1,00,000 per katha and awarded additional compensation under Section 23(1A) and solatium under Section 23(2) together with statutory interest under Section 28 of the Act. Thereafter the applicants in Misc Case No. 3295/2007 instituted Money Execution Case Nos. 4 and 5 of 2006 before the learned Additional District Judge, Kamrup, Guwahati for realization of the decretal amount wherein, the applicants were arrayed as judgment debtor. The applicant in Misc. Case No. 3296/2007 similarly instituted Money Execution Nos. 6, 7 and 8/2006 against the applicants. In the applications for execution of the decree, it was categorically asserted that no appeal had been preferred against the same. According to the applicants, the Appellant/judgment debtor after availing several adjournments, ultimately on 4.6.2007 filed a copy of the order dated 30.5.2007 passed by this Court in Misc. Case No. 1949/2007 (in L.A. Appeal No. 5/2007) and Misc. Case No. 1950/2007 (in L.A. Appeal No. 6/07) staying execution of the judgment and decree dated 3.5.2006 passed in Reference Case Nos. 17 and 18/2005 subject to the deposit of Rs. 50% of the decretal amount. 11. Case No. 1949/2007 (in L.A. Appeal No. 5/2007) and Misc. Case No. 1950/2007 (in L.A. Appeal No. 6/07) staying execution of the judgment and decree dated 3.5.2006 passed in Reference Case Nos. 17 and 18/2005 subject to the deposit of Rs. 50% of the decretal amount. 11. Apart from contending that the Appellants prior to 4.6.2007 had not disclosed to die executing Court the factum of the appeals before this Court, the applicants have averred that on a scrutiny of the records of L.A. Case Nos. 5 and 6/2007, it transpires that those had been filed on 14.8.2005 without however, affixing any Court fee by keeping the appeal value blank in the Memo of Appeal. It has also been averred that the Appellants on the same date had filed applications before the Registrar General of this Court seeking permission to file the appeals and praying for time to deposit the Court fee on which the said authority granted five days with the observation that in case of the failure of the Appellants to furnish the deficit court fee by the time allowed, the appeals would not be registered. The applicants have further averred that necessary Court fee was deposited only on 29.5.2007 after expiry of 283 days and that too without taking any prior permission from the Registrar General of this Court. The Superintendent of the Filing Section, however, reported of the correction of the deficit on 29.5.2007 where after the appeals were listed for admission on the next day, i.e., 30.5.2007. The appeals were thereafter admitted on that date and the interim order as indicated hereinabove on the prayers contained therein were passed. The applicants have maintained that not only the Appellants omitted to file applications praying for further time to deposit the deficit Court fee, they also suppressed the fact of delay of 283 days in taking steps in that regard and that too without the leave of any authority concerned. In these circumstances, the applicants contend that the orders dated 30.5.2007 admitting the appeals and staying the execution of the judgment and decree impugned therein, be recalled. 12. The Appellants in their affidavit though as such have not denied, the course of events leading to the filing of the appeals, as narrated hereinabove have reiterated their remonstrance against the judgment and order dated 3.5.2006 passed by the learned Addl. District Judge, Kamrup, Guwahati impugned in the appeals. 12. The Appellants in their affidavit though as such have not denied, the course of events leading to the filing of the appeals, as narrated hereinabove have reiterated their remonstrance against the judgment and order dated 3.5.2006 passed by the learned Addl. District Judge, Kamrup, Guwahati impugned in the appeals. They also denied to have availed several adjournments in the execution cases. The Appellant, however, did not in categorical terms reply to the averments pertaining to the non-deposit of the court fee in time and belated deposit thereof without either seeking extension of the time granted by the Registrar General or his permission to do so. 13. By Misc. Case Nos. 4380 and 4381/2007 filed under Section 149 of the Code of Civil Procedure, 1908 (as amended), the Appellants have prayed for an order to accept the deficit court fee by condoning the delay in furnishing the same. According to them, immediately after the judgment and decree dated 3.5.2006 was passed by the learned Additional District Judge, Kamrup in Reference Case Nos. 17 and 18 of 2005, their learned Counsel applied for the certified copy thereof and on obtaining the same it was forwarded to the office of the Accountant General (A and E) Assam with an advice to prefer appeal. Subsequent thereto, the Senior Audit Officer (Estate) of the office of the Principal Accountant General (Audit), Assam, Guwahati by his letter dated 25.7.2007 requested their learned Counsel to do the needful and accordingly the appeals were filed on 14.8.2006 with deficit court fee. On an application before the Registrar General of this Court praying for accommodation to deposit the deficit court fee, five days time was allowed. According to the Appellants, necessary funds could not be arranged within the time granted. They have stated that the decision to file the appeal notwithstanding, sanction was to be obtained from the head office at Delhi for funds for purchasing court fee and though correspondences were made in this regard, some unavoidable delay occurred because of the official procedure involved. Eventually, after obtaining the sanction from the Headquarter, court fee was purchased and deposited on 29.5.2007. Though the appeals had been filed within the period of limitation, there occurred a delay of 283 days in furnishing the full court fee. Eventually, after obtaining the sanction from the Headquarter, court fee was purchased and deposited on 29.5.2007. Though the appeals had been filed within the period of limitation, there occurred a delay of 283 days in furnishing the full court fee. According to the Appellants, they were prevented by sufficient cause in not paying the entire court fee in time and, therefore, the delay involved ought to be condoned lest the public exchequer would suffer. No counter to these applications under Section 149 of the Code have been filed by the applicants, land owners. 14. Mr. Islam, learned Counsel for the Appellants has argued that as the appeals in fact had been filed in time and deficit court fee in full has since been deposited, having regard to the unavoidable yet obligatory official formalities, the delay in the facts and circumstances of the case in depositing the deficit court fee ought to be condoned by invoking Section 149 of the Code. According to the learned Counsel, in terms of Rule 10 of Chapter V of the Gauhati High Court Rules ('the Rules'), the Registrar General of the Court being empowered to do so, granted time to the Appellants to furnish the deficit court fee and as the same was deposited, belatedly though, the allegation of suppression of facts is unfounded. The learned Counsel urged that balancing the competing interests, as the delay is not intentional, the same ought to be condoned and the appeals be heard on merits. In support of his submissions, Mr. Islam has placed reliance on the decisions of the Apex Court in Mannan Lal v. Mst. Chhotka Bibi (dead) by her legal representative and Ors. AIR 1971 SC 1374 ; and of the Punjab and Haryana High Court in Raj Kumar and Anr. v. Amar Singh and Ors. AIR 1981 P & H 1. 15. Mr. Pathak, has argued in refutation that Rule 10 of Chapter V of the Rules, has no application to the facts of the case and, therefore, reliance thereon is misconceived. According to him, said provision of the Rules does not authorize the Registrar General of this Court to grant time for deposit of deficit court fee. 15. Mr. Pathak, has argued in refutation that Rule 10 of Chapter V of the Rules, has no application to the facts of the case and, therefore, reliance thereon is misconceived. According to him, said provision of the Rules does not authorize the Registrar General of this Court to grant time for deposit of deficit court fee. He reiterated the pleaded stand of the applicants of suppression of material facts regarding the failure of the Appellants to deposit the deficit court fee in time and the undue delay involved and contended that it would be in the fitness of things to recall the order dated 30.5.2007 in order to prevent the abuse of the process of the court. In response to Mr. Islam's plea that in view of the application under Section 149 of the Code, the delay in deposit of the deficit court fee is condonable even at this stage, Mr. Pathak contended that those after the court fee being paid are superfluous and irrelevant and ought not to be taken cognizance thereof. 16. The basic facts are admitted. The appeals though filed within the period of limitation prescribed on 14.8.2006, the memoranda thereof were shorn of the court fee payable. The check lists of the appeals prepared by the Filing Section clearly demonstrate that the appeal value had not been stated in the Memoranda of Appeal and the Court fee required had not been paid. This prima facie endorse the applicants' assertion that the relevant spaces were left blank at the time of filing of the appeals. The checklists reveal that the court fee was paid only on 29.5.2007. Applications filed by the learned Counsel for the Appellants before the Registrar General of this Court on 14.8.2006, copies whereof have been annexed to the Misc. Case Nos. 3295 and 3296 of 2007 contain the following endorsement on the body thereof by the above authority: May be accepted subject to furnishing d.c.f. within 3 days failing which the appeal shall not be registered. By these applications, a prayer was made on behalf of the Appellants to allow them to file the appeals with deficit court fee praying that time be granted it to rectify the defect. It is not the case of the Appellants that any endeavour had been made by them to have the time so granted extended either by the said authority or by the court thereafter. It is not the case of the Appellants that any endeavour had been made by them to have the time so granted extended either by the said authority or by the court thereafter. The shortfall in the court fee was made up only on 29.5.2007 after the expiry of 283 days from the expiry of time granted by the Registrar General of this Court. The office, however, on receipt of the deficit court fee on 29.5.2007 certified the appeals to be ready and accordingly the same were listed on 30.5.2007 and the orders admitting the appeals and staying the execution of the impugned decree were passed on that day. 17. Rule 10 of Chapter V of the rules which deals with the general rules of procedure permits the Registrar General to allow time within which a memorandum of appeal if not in proper form and/or not accompanied by necessary copies of papers, those must be amended or the necessary papers be filed. This rule per se does not deal with the aspect of court fee. Under Rule 18(2), however, if the Stamp Reporter, on a Memorandum of Appeal being presented to him finds it to be insufficiently stamped, he would make a note thereon and return it with as little delay as possible to the advocate or to the party presenting it. If the advocate of the party refiles it with the deficit court fee within the prescribed period of limitation, the Stamp Reporter would record to that effect on the Memorandum which would then be admitted. Rule 18(3) provides that the advocate or the party to whom the Memorandum of Appeal is returned as above, may apply to the Registrar for time to pay the requisite court fee and on such application being made, the said authority if satisfied, may fix a period within which the additional court fee must be paid. In other cases or when the requisite court fee is not paid within the period fixed, the Registrar would lay the matter before the Division Bench Court for orders. Rule 18(4) contemplates an eventuality where no time under Clause (3) is fixed. In such an event, if the appeals insufficiently stamped are refiled after the period of limitation has expired, it would be presented directly to the Registrar who may pass order for the admission thereof or may lay it before the Division Court for orders. Rule 18(4) contemplates an eventuality where no time under Clause (3) is fixed. In such an event, if the appeals insufficiently stamped are refiled after the period of limitation has expired, it would be presented directly to the Registrar who may pass order for the admission thereof or may lay it before the Division Court for orders. Clause (5) of Rule 18 obligates that an application under Clause (3) before the Registrar for time to file the deficit court fee must be accompanied by an affidavit explaining the insufficiency unless the same is due to mistake which is apparent on the face of the papers filed. 18. Rule 24 requires that if a memorandum dealt with under Rule 18 is duly stamped or amended under Rule 20 within the time fixed by the Registrar or Court, as the case may be, the court would admit and the same would then be registered. The said rule mandates that if such memorandum is not duly stamped or amended within the time allowed, the court may reject such memorandum or pass such order relating thereto as it may consider proper. 19. To start with, the applications in the instant appeals submitted before the Registrar General intimating insufficiency in court fee and seeking time to furnish the amount in deficit was not accompanied by an affidavit as required under Clause (5) of Rule 18. In the case in hand, there is no dispute with regard to the amount of court fee payable and, therefore, the question of any mistake pertaining thereto did not arise. The submission of affidavit in terms of the dear enjoinment of Rule 18(5) was, thus, an imperative essentiality. The applications, therefore, ought not to have been entertained by the Registrar General of this Court. Be that as it may, admittedly the Appellants did not deposit the deficit court fee within the time granted by the said authority. No prayer for extension thereof by him or the court was, however, made. In terms of Rule 18(3), the matter, therefore, ought to have been placed before the court for orders before accepting the belated deposit of deficit court fee made on 29.5.2007. As Rule 24 indicates, for the failure of the Appellants to supply the deficit court fee in time, the court in its discretion could have rejected the memorandum of appeal at that stage itself. As Rule 24 indicates, for the failure of the Appellants to supply the deficit court fee in time, the court in its discretion could have rejected the memorandum of appeal at that stage itself. The office instead being unmindful of the prescriptions of Rule 18 in spite of enormous delay accepted the deposit and certified the appeals to be ready. This is clearly in the teeth of the unambiguous and explicit enjoinments embodied in Rule 18. The certification by the office that the appeals were free from defect and, thus, worthy to be considered for admission by the court is per se in violation of the Rules. Under Rule 18(3), the court alone had the power to pass appropriate orders in the matter of acceptance or otherwise of the delayed deposit of the deficit court fee and as a necessary corollary, the appeals could not have been listed for admission in absence of any order accepting such deposit. The procedure followed by the office, therefore, suffers from gross irregularities in violation of the Rules. No order admitting the appeals or granting the stay of the impugned degree, thus, could have been passed on 30.5.2007 without first attending to the aspect of delay in the deposit of the deficit court fee. 20. In the above premise, the applications under Section 149 of the Code even if entertainable at that stage assume considerable significance. The Appellants have pleaded their inability to arrange for the funds to pay the deficit court fee within five days as granted by the Registrar General of this Court. Even assuming that the time sought was validly granted, the contention it far from convincing. The averment to the effect that in spite of correspondences made with the head office of the Appellants, the amount necessary was sanctioned so as to purchase and deposit the court fee on 29.5.2007 after a delay of 283 days, having regard to the heavy stake involved in that appeals, does not commend for acceptance. The pleadings relating to the delay are vague and lacking in material particulars. The details of the correspondences made in respect thereto, the follow up steps taken thereafter and the reasons in particular, contributing to the delay are not forthcoming. The amounts of court fee payable also do not appear to be prohibitive for the Appellants to be delayed by over nine months in depositing the same. The details of the correspondences made in respect thereto, the follow up steps taken thereafter and the reasons in particular, contributing to the delay are not forthcoming. The amounts of court fee payable also do not appear to be prohibitive for the Appellants to be delayed by over nine months in depositing the same. What is more dismaying is the Appellants' lackadaisical insouciance as is manifest from their indifferent omission to seek further to make good the deficiency in the court fee. They remained casually languid in the matter and allowed the time to fleet at their convenience. True, it is that a liberal and considerate approach is to be adopted by a court in evaluating the facts circumstances claimed to constitute sufficient cause in explaining the delay in legal proceedings. However, and discretion exercisable cannot be divorced from the attendant facts and circumstances. Bureaucratic formalities as in the case of the Appellants though are understandable impediments, the pleadings furnished to this Court are grossly inadequate to come to their rescue in the case in hand. I am, therefore, not inclined, on an over all consideration of the materials on record to condone the delay in deposit of the deficit court fee. Axiomatically, the deposits are not accepted. 21. The decision of the Apex Court in Mannan Lal (supra) underlines the discretionary power of the court under Section 149 of the Code to allow payment of the deficit court fee at any stage of the proceeding before it and lays down that upon such payment, the document in respect of which such fee payable would have the same force and effect as if such fee had been paid at the first instance. Their lordships held the view that if a memorandum of appeal is deficient in court fee, and is not registered but time is granted to the Appellant to make up the deficiency and the opportunity is availed of, the appeal would then have to be treated as one pending from the date when it was before Stamp Reporter and the deficiency was noted therein. The decision clearly recognizes the discretion of the court to grant time to the defaulting Appellant to pay the deficit court fee whereupon if the deficiency is effaced, the appeal would be construed to be in force and effect from the date of its initial presentation with the defect. The decision clearly recognizes the discretion of the court to grant time to the defaulting Appellant to pay the deficit court fee whereupon if the deficiency is effaced, the appeal would be construed to be in force and effect from the date of its initial presentation with the defect. This decision does not propound that a court, de hors the prevalent facts and circumstances in the face of unwarranted and explained delay would be obliged to accept such deposit made at the convenience of the party in default. This decision, therefore, in my opinion, does not advance the case of the Appellants. The decision of the Full Bench of Punjab and Haryana High Court in Raj Kumar and Anr. (supra) also recognized the power of the appellate court under Order 41, Rule 3 of the Code to exercise its discretion under Section 149 of the Code on the issue of grant of opportunity to the Appellant to make up any deficiency in court fee. The contextual facts involved in that case are distinctly different from those in hand and, therefore, the prayer for condonation of delay in the present proceedings based thereon is of no avail. 22. The upshot of the above discussion is that the appeals as on 30.5.2007 were defective in absence of any order accepting the belated deposit of deficit fee made by the Appellants. The reason for the delay having been rejected as insufficient, the appeals being not entertainable in law are liable to be dismissed. In the result, the Misc. Case Nos. 3295 and 3296/2007 are allowed. Misc. Case Nos. 4380 and 4381/2007 are rejected. The orders dated 30.5.2007 passed in L.A. Appeal Nos. 5 and 6/2007 are hereby recalled. L.A. Appeal Nos. 5 and 6/2007 and Misc. Case Nos. 1949 and 1950/2007 are dismissed. No costs.