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2011 DIGILAW 1237 (MP)

RAMESHCHANDRA v. STATE OF M. P.

2011-11-01

KRISHN KUMAR LAHOTI, VIMLA JAIN

body2011
ORDER K.K. Lahoti, J.—In compliance of our order dated 19.10.2011, Shri K.D. Khan, Principal Secretary, Law and Shri R.K. Verma, Secretary, Law have appeared to assist us. It is stated that an affidavit has been filed by the Law Secretary stating that the notification Annexure P/8 was issued by the State Government in view of the powers as contained in Section 35 of the Court Fees Act, 1870. It is submitted by Shri Jain that in view of the provision as contained in Section 16C of the Court Fees Act, 1870, the State can deduct the amount from the court fee paid by the plaintiff towards administrative expenses incurred by the State for the court-fee. 2. Learned counsel appearing for petitioner submitted that Section 16 of the Court Fees Act, 1870 does not empower the State Government to deduct any amount of the court-fee which was paid by the petitioner/appellant on the memo of appeal if the case is settled as per the provisions u/s 89 of the Code of Civil Procedure, 1908, the appellant/petitioner is entitled for the full amount of the court-fee paid in respect of memo of appeal. 3. We have heard learned counsel for parties. 4. Facts of the case are that the petitioner filed a First Appeal bearing No. 537/2002 before Indore Bench of this Court. Aforesaid matter was settled in Lok Adalat on 21.12.2008. The Bench constituted for the Lok Adalat directed for refund of the court-fee on the memo of appeal in accordance with law. Thereafter, the petitioner moved an application for refund of the court-fee paid on the memo of appeal. While processing the matter, the Registry deducted 10% of the court-fee paid by the petitioner on the memo of appeal. An explanation was furnished to the petitioner that the aforesaid amount is to be deducted by the Registry in view of the notification dated 24.3.2003 issued by the Law and Legislative Affairs Department. 5. Contention of the petitioner is that in view of the specific provision as contained in Section 16 of the Court Fees Act, 1870 read with Section 21 of the Legal Services Authority Act, 1987, the petitioner is entitled for full refund of court-fee without any deduction. 6. 5. Contention of the petitioner is that in view of the specific provision as contained in Section 16 of the Court Fees Act, 1870 read with Section 21 of the Legal Services Authority Act, 1987, the petitioner is entitled for full refund of court-fee without any deduction. 6. Notification of the State Government dated 24.3.2003 reads thus:- "NOTIFICATION F. No. 17(E)4/2003/234/21 -B(II)-In exercise of the powers conferred by section 35 of the Court Fees Act, 1870 (No. 7 of 1870), the State Government hereby makes the following amendment in this Department's notification No. 9-l-86-B-XXI dated 10 April, 1987, namely: AMENDMENT In the said notification, in sub-para (3) of para (1) for the words "the party shall be entitled to refund of the court-fees already paid by him", the words "the party shall be entitled to refund of an amount after deduction of 10 percent of the court-fee already paid by him." BY ORDER AND IN THE NAME OF THE GOVERNOR OF Sd/- G.S. Solanki, Addl. Secretary, Law and Legislative Affairs" Aforesaid notification has been issued by the State u/s 35 of the Court Fees Act, 1870. Section 35 of the Court Fees Act, 1870 provides thus:- 35. Power to reduce or remit fees- The appropriate Government may, from time to time by notification in the Official Gazette, reduce or remit, in the whole or in any part of the territories under its administration all or any of the fees mentioned in the first and second schedules to this Act annexed, and may in like manner cancel or vary such order. 7. Aforesaid provision specifically provides that the State Government may subject to such condition or restriction, as it may think to impose, by notification in the Official Gazette, reduce or remit in the whole or in any part of the State under its administration all or any of the fees mentioned in the first and second schedules to this Act annexed, and may in like manner cancel or vary such order. Aforesaid provision specifically provides that the State Government may reduce or remit the court-fee payable in respect of the items mentioned in the first and second schedules of the Act, but it does not give any power to the State Government to deduct any amount which is to be refunded to the petitioner in view of Section 16 of the Court Fees Act. Section 16 of the Court Fees Act, 1870 provides thus: 16. Refund of fee- Where the Court refers the parties to the suit to any of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 (5 of 1908) the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the Collector, the full amount of the fee paid in respect of such plaint. (emphasis supplied) Section 21 of the Legal Services Authorities Act, 1987 provides thus: Section 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 sub-section (1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870) (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. 9. Aforesaid both provisions specifically provides that in a case where the matter is settled u/s 89 of the Code of Civil Procedure, the petitioner/appellant shall be entitled for the full refund of the court-fee paid in respect of such plaint or appeal. Section 21 of the Legal Services Authorities Act, 1987 also provides that 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 court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870. Shri R.D. Jain, learned Advocate General has placed reliance to Section 16C of the Court Fees Act, 1870 which reads thus: 16-C Procedure for obtaining refund when a person becomes entitled to a refund of court-fee-The Court shall grant a certificate authorising him to receive back from the Collector the amount specified therein, calculated according to the provisions of this Act. 11. But the aforesaid amendment is applicable in the State of Goa, Daman and Diu and not in the State of MP. 11. But the aforesaid amendment is applicable in the State of Goa, Daman and Diu and not in the State of MP. Though in the Book provided to us by Shri R.D. Jain by M.N. Basu on Law of Court Fees & Suits Valuation on page 480, there is such local amendment by State of Goa, Daman and Diu. We have also verified the aforesaid and find that this amendment is applicable in the State of Goa, Daman and Diu and is not applicable in the State of MP. So the provision as referred by Shri Jain does not help him. 12. Section 89 of the CPC has been amended by the CPC (Amendment) Act, 1999 which has been made effective from 1.7.2002, which is reproduced as under:- Section 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 observation 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 had been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of subsection (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act: (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. 13. 13. Section 16 of the Court Fees Act, 1870 has been also inserted by the Act No. 46 of 1999 by the CPC (Amendment) Act, 1999 (Act No. 46 of 1999) which has been made effective from 1.7.2002. Aforesaid provision has been inserted by the Parliament by the aforesaid Act which provides that after settlement of the dispute referred to the Lok Adalat u/s 89 of the Code of Civil Procedure, 1908, petitioner/appellant shall be entitled to a certificate from the Court authorising him to receive back from the Collector the full amount of the fee paid in respect of memo of appeal. In view of the specific provision as contained in Section 16 of the Court Fees Act, 1870, the petitioner/appellant is entitled for full refund of the fee paid on appeal. 14. In the light of aforesaid discussion, no deduction could have been made by the authorities even on the strength of the Circular Annexure P/8 dated 24.3.2003. As stated hereinabove, there is no provision in Section 35 of the Court Fees Act, 1870 empowering the State to deduct any amount which is refundable u/s 16 of the said Act, but inspite of this, aforesaid amount has been directed to be deducted by the State Government. We have examined Sections 16 and 35 of the Court Fees Act, 1870 as argued by Shri R.D. Jain, learned Advocate General, but we do not find any such provision in both the sections empowering the State Government to deduct any amount from the court-fee payable u/s 16 of the Court Fees Act, 1870. Apart from this, the aforesaid enactment has been made by the Parliament with the assent of the President and if the State was of the view that any amount is to be deducted from such court-fee, then after due amendment in the provision, assent of the President was necessary. In this case, no averment has been made by the State that any such amendment was made by the State Legislature in Section 16 and the assent of the President was obtained. In view of the aforesaid, notification dated 24.3.2003 is contrary to Section 16 of the Court Fees Act, not sustainable under law and is hereby quashed. 15. In this case, no averment has been made by the State that any such amendment was made by the State Legislature in Section 16 and the assent of the President was obtained. In view of the aforesaid, notification dated 24.3.2003 is contrary to Section 16 of the Court Fees Act, not sustainable under law and is hereby quashed. 15. State is directed to refund full amount of the court-fee in respect of the matters which are settled in Lok Adalat in view of the specific provision as contained in section 16 of the Court Fees Act, 1870 and section 21 of the Legal Services Authorities Act, 1987. This petition is allowed with costs. Counsel's fee Rs. 2,000/- Final Result : Allowed