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2010 DIGILAW 546 (KER)

Palakkad Municipality v. Abdul Muthalif

2010-07-20

S.S.SATHEESACHANDRAN, THOTTATHIL B.RADHAKRISHNAN

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Judgment :- Thottathil B. Radhakrishnan, J. 1. Is a Municipality exempted from paying court fee under the Kerala Court Fees and Suits Valuation Act, 1959? 2. Respondent obtained a decree for money against the appellant Municipality. The appeal is filed without paying court fee. The Court Fee Examiner noted the appeal as defective. The appellant took the stand that the municipality is a local self government institution entitled to the benefit of S.73A of the Kerala Court Fees and Suits Valuation Act, 1959, hereinafter referred to as the “C.F. Act” and hence no court fee is chargeable on the appeal. The Registry notices that no autonomous body/statutory body or even the Central Government is exempted from payment of court fee even in terms of S.73A. It made reference to the decisions in this regard in Project Officer v. Smitha (2003 (1) KLT 587) and Kerala Water Authority v. Valsan (2003 (1) KLT 971) relating to Kerala Water Authority, Chief Project Manager v. Aji Kurian (2003 (3) KLT 56) relating to central Government. The file is accordingly placed for determination of that issue. The learned senior counsel appearing for the appellant-municipality argued that in terms of S.73A of the C.F. Act, the word “Government” should be understood to include a Municipality in the light of Article 243Q of the Constitution and the judgment of the Apex Court in Cantonment Board, Secunderabad v. G. Venketram Reddy ((1995) 4 SCC 561), Viswanatha Pillai v. State of Kerala (1997 (1) KLT 334) and Unnikrishnan v. Paravur Municipality (2008 (2) KLT 711). 3. We heard the learned Government Pleader also. He pointed out that the decisions referred to by the Registry apply on all fours to Municipalities also and in the absence of express exclusion being specifically made in S.73A, nothing more than what is available there could be read into. He points out that S.73A is a special provision made applicable only to matters filed by or on behalf of the Government before the court and that it does not apply to any other person. 4. Section 73A reads as follows: “73A. Special provision regarding suits, appeals, revision etc. filed by or on behalf of the Government before the Court. He points out that S.73A is a special provision made applicable only to matters filed by or on behalf of the Government before the court and that it does not apply to any other person. 4. Section 73A reads as follows: “73A. Special provision regarding suits, appeals, revision etc. filed by or on behalf of the Government before the Court. – Notwithstanding anything contained in any other provisions of this Act, where a suit, appeal, revision, review or other pleadings or documents are filed or presented by or on behalf of the Govenrment or its officers in their official capacity before any Court, no court fee shall be chargeable in respect of such suit, appeal, revision, review or other pleadings or documents under the provisions of this Act.” 5. On the fact of it, S.73A is a special provision. It applies to suits, appeals, revisions etc. filed by or on behalf of the Government before the Court. S.73A opens with a non obstante clause, operating notwithstanding anything contained in any other provisions of the C.F. Act. It is a self-contained provision. 6. The word “Government” is not defined in the C.F. Act. S.3(4) of the CF Act provides that unless the context otherwise requires, the expressions used and not defined in that Act or in the Interpretation and General Clauses Act, 1125 (Act VII of 1125), but defined in the Code of Civil Procedure, 1908 (Central Act V of 1908), shall have the meanings respectively assigned to them in the said Code. This means that in the absence of any definition in the CF Act for an expression, it has to be searched for, firstly, in the General Clauses Act, 1125, Act VII of 1125, as it originally stood, was the Travancore-Cochin Interpretation and General Clauses Act, 1125 enacted by the Legislature of the United State of Travancore and Cochin. That was amended by Act 3 of 1957 and the words “Travancore-Cochin” in the title to the Act were substituted by the word “the Kerala”. S.3(15) of that Act, among other things, states, in sub-clause (c) thereof, that “Government”, “the Government” or “State Government”, as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall-mean “the Government of the State of Kerala”. S.3(15) of that Act, among other things, states, in sub-clause (c) thereof, that “Government”, “the Government” or “State Government”, as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall-mean “the Government of the State of Kerala”. That definition would include, the Central Government when the functions in relation to the State of Kerala are entrusted to the Union in terms of Art.258A of the Constitution. That aspect of S.3(15) of the General Clauses Act is not a matter for our concern in this case. Therefore, applying the definition of the word “Government” in the General Clauses Act to S.73A of the C.F. Act, the word “Government” in S.73A of the C.F. Act means the Government of the State of Kerala. The specific use of the legislative device “shall mean” in S.3(15) of the General Clauses Act does not admit of any expansion of the specific provision made therein. In fact, the C.F. Act, 1959, which is Act 10/1960 was enacted only after the Tranvancore-Cochin Interpretation and General Clauses Act, 1125 under went the amendments noted above as per Act 3/1957. S.73A was inserted in the C.F. Act with effect from 26.10.2002, long after the constitutional amendments bringing in Parts IX and IX-A and also the State Legislature enacting Kerala Municipality Act, 1994 and the Kerala Panchayat Raj Act, 1994. If it were the intention of the Legislature to apply the special provision of exemption to Municipalities and Panchayats also, we find no reason why such clear expression does not find place in S.73A. Therefore, there is no room at all to assume that the Legislature ever intended to bring any person, natural or juristic, including any authority other than the Government of Kerala or its officers in their official capacity within the purview of S.73A. We are, therefore, of the view that the intention of Legislature is clear that it never intended to extend the special provision of exemption in S.73A of the C.F. Act to any person or authority other than the Government of Kerala. 7. We are, therefore, of the view that the intention of Legislature is clear that it never intended to extend the special provision of exemption in S.73A of the C.F. Act to any person or authority other than the Government of Kerala. 7. The law laid by the Apex Court in Cantonment Board, Secunderabad (supra) does not aid in answering the question in hand in the appellant’s favour as the power of municipality to impose octoroi and the genesis and content of the power exercised by the municipality in that regard do not admit of any applicability of that judgment to the resolution of the dispute as to whether municipality is State Government for the purpose of S.73A of the C.F. Act. The duties, responsibilities and powers of a particular authority, though may be incidental to decide the quality of its existence and function, have no bearing on the issue of levy of court fee when the particular fiscal imposition is excluded by the State Legislature by making a special provision, that too, exclusively in favour of the State Government. The decision in Unnikrishnan (supra) regarding the powers of the municipality also does not have any bearing on the issue referable to fiscal impositions in the nature of court fee and exemptions therefrom in terms of special provisions made specifically by the State Legislature. Art.243Q of the Constitution relating to the constitution of Municipalities and the conferment of certain powers on the Municipalities by the inclusion of Parts IX and IX-A in the Constitution do not, in any manner, make the Municipalities in the State of Kerala part of the Government of Kerala for the purpose of the General Clauses Act and therefore, for the purpose of S.73A of the C.F. Act. Similarly, the provisions in Part IX do not bring in the Panchayats in the State of Kerala to be part of the Government of Kerala for such purpose. In fact, the core reason for the constitutional amendments that led to the introduction of Parts IX and IX-A in the Constitution as they now stand, was to insulate the Panchayats and Municipalities from being treated as part of Government and to sustain them as independent local self government institutions. In fact, the core reason for the constitutional amendments that led to the introduction of Parts IX and IX-A in the Constitution as they now stand, was to insulate the Panchayats and Municipalities from being treated as part of Government and to sustain them as independent local self government institutions. The quality of the authority of the Municipalities and Panchayats in terms of the provisions of Parts IX and IX-A of the Constitution and the corresponding State legislations covering the Municipalities and the Panchayats do not lead to any conclusion that Panchayats and Municipalities are to be treated as Government for the purpose of S.73A of the C.F. Act. 8. The decision of this Court in Viswanatha Pillai (supra) treating the Public Service Commission as Government for the purpose of S.23 of the Advocates’ Welfare Fund Act is only a matter relatable to payments towards welfare fund by an advocate appearing on behalf of the P.S.C. The constitutional setting of the P.S.C., qua the Government, as interpreted and applied while deciding the issue of payment towards Advocates’ Welfare Fund has no bearing on the issue arising for decision regarding levy of court fee, which is a fiscal imposition and not a contribution to a welfare fund. The payment towards welfare fund and payment of court fee are entirely different matters, including in the respective quality of their levy. Therefore, we are of the view that Viswanatha Pillai’s case has no application to the facts of the case in hand. 9. It is a salutary principle that provisions enabling exemption from fiscal imposition like tax, fee etc. have to be strictly construed and the benefit of such exemption ought not to be enlarged, though full effect has to be given to the exemption. But, that cannot be by any circuitous process of interpretation. Applying the definition of Government as available in the General Clauses Act to S.73A of the C.F. Act, we are able to decipher one and only one interpretation, namely, that S.73A of the C.F. Act applies only to the Government of Kerala. It is not a case where two views are reasonably possible without doing violence to the statutory provision in question and the interpretation that goes in favour of the payer of tax or fee, and against the revenue, ought to be preferred. It is not a case where two views are reasonably possible without doing violence to the statutory provision in question and the interpretation that goes in favour of the payer of tax or fee, and against the revenue, ought to be preferred. Even if there is any ambiguity or doubt regarding an exemption provision in a fiscal statute, ambiguity or doubt being in relation to a provision providing exemption, that will be resolved in favour of the revenue and not in favour of the assessee. – See State Level Committee v. M/s. Morgardshammar India Ltd. (AIR 1996 SC 524), Collector of Central Excise, Bombay v. Parle Exports (P) Ltd. (1989) (1) KLT SN 1 (C.No.1) SC = (1989) 1 SCC 345), Liberty Oil Mills (P) Ltd. Bombay v. Collector of Central Excise, Bombay, ((1995) 1 SCC 451) and Novopan India Ltd. v. Collector of Central Excise and Customs, (1994 Supp (3) SCC 606). For the aforesaid reasons, we sustain the objection of the Registry. The appellant is granted one month’s time to pay the court fee due at institution of this appeal.