Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2695 (ALL)

SOHAN YADAV v. GRAM SABHA MAHRAJ GANJ

2017-11-22

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Ashok Kumar Shukla, learned counsel for the petitioners, Sri I.S. Tomar, learned Additional Chief Standing Counsel for the respondent No. 2 and Sri Tariq Maqbool Khan, learned counsel for the respondent No. 1, Gram Sabha. 2. With the consent of learned counsel for the petitioners and the learned Additional Chief Standing Counsel, this writ petition is being finally heard without calling for a counter-affidavit. Facts 3. Briefly stated facts of the present case are that the petitioners filed O.S. No. 91 of 2016 (Sohan Yadav and others v. Gram Sabha, Mahrajganj and another) seeking declaration and permanent injunction with respect to certain Khasra plots of Village - Mahrajganj, Tappa - Marachchi Chandaur, Pargana - Haveli, Tehsil - Sadar, District Gorakhpur. Fixed Court Fees was paid by them in terms of the provisions of Article 17(iii) of Schedule II and Section 7(iv-B)(b) of the Court Fees Act, 1870 being Rs. 200 + Rs.500, total Rs.700. The Munsirim submitted a report for deficiency of Court Fees. Petitioners objected to the Munsirim’s report as incorrect. The question was adjudicated by the Civil Judge (S.D.), Gorakhpur, by order dated 25.2.2016, whereby he held that for a suit seeking relief for declaration and permanent injunction Court Fees is payable on ad valorem basis on market value of the property. Aggrieved with the aforesaid order the petitioners filed a civil revision No. 56 of 2016 (Sohan Yadav and others v. Gram Sabha, Mahrajganj and another) which was dismissed by the Court of Additional District Judge Court No. 6, Gorakhpur, by the impugned order dated 19.9.2017. Aggrieved with these two orders, the petitioners have filed the present writ petition. Submissions 4. Learned counsel for the petitioners submits that as per plaint the relief for declaration and permanent injunction have been sought and as such fixed Court Fees is payable in terms of the provisions of Article 17(iii) of Schedule II and Section 7 (iv-B)(b) of the Act. He submits that provisions of Section 7(iv-A) is not applicable on the facts of the present case inasmuch as the petitioners are not seeking relief for cancellation of instrument or of adjudging void or voidable decree for money or other property having a market value or an instrument securing money or other property. He submits that provisions of Section 7(iv-A) is not applicable on the facts of the present case inasmuch as the petitioners are not seeking relief for cancellation of instrument or of adjudging void or voidable decree for money or other property having a market value or an instrument securing money or other property. He, therefore, submits that the impugned orders are wholly arbitrary and illegal and, therefore, deserves to be set aside and a direction deserves to be issued that Court Fees has been correctly paid. 5. Learned Additional Chief Standing Counsel fairly admits that as per copy of the plaint filed alongwith writ petition, the relief has been sought by the petitioners for declaration and permanent injunction which attracts fixed Court Fees and that the issue is covered by Full Bench judgment of this Court in the case of Chief Inspector of Stamps, U.P. Allahabad v. Mahanth Laxmi Narain, AIR 1970 (All) 488 . Discussion and Findings 6. I have carefully considered the submissions of learned counsel for the parties and perused the record. 7. It is not in dispute that as per plaint the petitioners have sought the relief for declaration and permanent injunction. Provisions relevant for the purpose of present controversy are Section 7(iv)(a) and Article 17(iii) of Schedule II of the Act which are reproduced below : Relevant provisions “Section 7. Computation of fees payable in certain suits for money : The amount of fee payable under this Act in the suit next hereinafter mentioned shall be computed as follows: (i) .......... (ii-a) ......... (ii-b)........... (iii)............. (iv) In suits-(a) For declaratory decree with consequential relief : to obtain a declaratory decree or order, where consequential relief other than reliefs specified in sub-section (iv-A) is prayed; and For accounts.—(b) For accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal: Provided that in suits falling under clause (a), where the relief sought is with reference to any immovable property, such amount shall be the value of the consequential relief and if such relief is incapable of valuation, then the value of the immovable property computed in accordance with sub-section (v), (v-A) or (v-B) of this section as the case may be: Provided further that in all suits falling under clause (a), such amount shall in no case be less than Rs. 300: Provided (also), that in suits falling under clause (b) such amount shall be the approximate sum due to the plaintiff and the said sum shall form the basis for calculating (or determining) the valuation of an appeal from a preliminary decree passed in the suit. (iv-A) ......... (iv-B) ........ (iv-C).......... (v).............. (v-A)........... (v-B).......... (vi)............ (vi-A)...... (vii)......... (viii)........ (ix).......... (x).......... (xi)......... Number Proper fee Article 17. Plaint or memorandum of appeal in each of the following suits: Twenty-two rupees (i) to alter or set aside a summary decision or order (not being one passed under Order XXI, Rules 60, 61 or 62 of the Code of Civil Procedure) or any of the Civil Courts not established by Letters Patent or of any Revenue Court. (ii) to alter or cancel any entry in a register of the names of proprietors of revenue paying estates. Twenty-two rupees (iii) To obtain a declaratory decree where no consequential relief is prayed in any suit, not otherwise provided by this Act. (a) When the value of the suit or appeal for purposes of jurisdiction does not exceed one thousand rupees. Thirty rupees (iv) Omitted by U.P. Act XIX of 1938. (b) When such value exceeds one thousand rupees, but does not exceed five thousand rupees. Fifty rupees (v) Omitted by U.P. Act XIX of 1938. (c) When such value exceeds five thousand rupees, but does not exceed ten thousand rupees. One hundred rupees (vi) For relief under Section 14 of the Religious Endowments Act, 1863, or under Section 91 or Section 92 of the Code of Civil Procedure, 1908. (d) When such value exceeds ten thousand rupees. Two hundred rupees (vii) Every other suit not otherwise provided for by this Act. Provided that in a suit filed before a High Court under its original jurisdiction the fee chargeable in all cases under this article shall be two hundred and fifty rupees. 8. (d) When such value exceeds ten thousand rupees. Two hundred rupees (vii) Every other suit not otherwise provided for by this Act. Provided that in a suit filed before a High Court under its original jurisdiction the fee chargeable in all cases under this article shall be two hundred and fifty rupees. 8. Perusal of the Section 7(iv)(a) of the Act makes it clear that in a suit obtaining a declaratory decree or order with consequential relief other than reliefs specified in sub-Section (iv-A), in respect of an immovable property shall be the value of the consequential relief and if such relief is incapable of valuation, then the value of immovable property shall be computed in accordance with sub-Section (v), (v-A) or (v-B) of Section 7, provided that in all suits falling under Clause (a), such amount shall in no case be less than Rs. 300/-. As per sub-Section (iv-B)(b) of the Act for obtaining an injunction the Court Fees shall not exceed Rs.500/-. As per Article 17 (iii) of Schedule II, to obtain a declaratory decree where no consequential relief is prayed in any suit not otherwise provided by this Act and where the value exceeds Rs. 10,000/- then the Court Fees shall be Rs. 200/-. 9. As per plaint the petitioners/plaintiffs claimed that they are in possession of the disputed property since the time of their ancestors and before abolition of the Zamindari. Based on these allegations a relief for declaratory decree has been sought with respect to the disputed land which is recorded as Gram Sabha land. The second relief sought by them is for permanent injunction. Thus, the second relief itself is dependent upon the first relief. Under the circumstances, the provisions of Section 7(iv)(a) of the Act shall be applicable for the purposes of Court Fees. 10. The provisions of Section 7(iv)(a) were considered by Full Bench of this Court in the case of Mahanth Laxmi Narain (supra) and two questions were framed as under: (i) Whether the relief of injunction prayed for in the two suits is a consequential relief to the relief of declaration? (ii) How is the relief in the two suits to be valued if they are governed by sub-Section (iv)(a)?” 11. The Full Bench in the case of Mahanth Laxmi Narain (supra) answered the aforequoted questions in paragraphs 22,23 and 24 as under : “22. (ii) How is the relief in the two suits to be valued if they are governed by sub-Section (iv)(a)?” 11. The Full Bench in the case of Mahanth Laxmi Narain (supra) answered the aforequoted questions in paragraphs 22,23 and 24 as under : “22. It thus appears that the second, third and fourth tests laid down in Kalu Ram’s case AIR 1932 All 485 (FB) are not justified and unnecessarily narrow down the meaning of the words ‘consequential relief’. Section 7(iv)(c) applies to a suit to obtain a declaratory decree or order in which a consequential relief is prayed. The suit must principally be for a declaration and in that suit some other relief should also be claimed. The two reliefs may be asked for either as one composite relief or as two distinct reliefs. The words ‘consequential relief’ imply that the other relief should be one which flows directly from the declaration which the plaintiff desires to be made. This means that the plaintiff should be entitled to the other relief only as a necessary consequence or result of the granting of the declaratory relief. The other relief must be so dependent on the declaratory relief that it cannot be allowed if the principal relief is refused. In suit No. 83 of 1953, two reliefs were prayed for which, in substance, were for a declaration that the proceedings of a meeting held on 14-2-1952 and the resolutions passed at it were illegal and not binding on the Mandali and for an injunction restraining the defendants from obstructing the plaintiffs from using the hall belonging to the Mandali. Here the relief of injunction flowed from the relief of declaration, and if the suit for declaration were dismissed, it could not be decreed for the injunction. The relief of injunction is, therefore, a consequential relief and the suit is covered by Sub-section (iv) (a). In suit No. 12 of 1960, the reliefs prayed for were a declaration that the first plaintiff was the Mahant of the Math and the Sarbarakar of the deity and of the properties of the Math and an injunction restraining the defendants from interfering with the possession of the first plaintiff over the properties as Mahant and Sarbarakar. The relief of injunction flowed directly from the right which the plaintiff desired to be declared and is a consequential relief. The relief of injunction flowed directly from the right which the plaintiff desired to be declared and is a consequential relief. This suit is also, therefore, covered by Sub-section (iv) (a). 23. The next question, which arises for consideration, is as to the manner in which the reliefs are to be valued under Sub-section (iv) (a). Sub-section (iv) (a) treats a suit for a declaratory decree or order, in which a consequential relief is prayed, as one for a single relief. It provides that the Court-fee payable in such suits shall be according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. This gives the plaintiff a right to put any valuation, which he considers proper, on the combined declaratory and consequential reliefs. This right of the plaintiff is subject to two restrictions imposed by the first and the second provisos. The second proviso makes ‘it incumbent on the plaintiff to value the relief at an amount not less than Rs. 300/-. The first proviso has already been set out earlier. It is applicable only to suits falling under Sub-section (iv) (a) in which the relief sought is with reference to immovable property. It provides for the following three things: (i) That the plaintiff shall value the relief according to the value of the consequential relief. This means that the declaratory relief and the consequential relief have to be treated as one relief and the value of such relief has to be the value of the consequential relief: (ii) that, if the consequential relief is capable of valuation, then the plaintiff shall value the relief at an amount according to this valuation; and (iii) that, if the consequential relief is incapable of valuation, then the plaintiff shall value the relief at an amount which is the value of the immovable property computed in accordance with Sub-section (v), (v-A) or (v-B) as the case may be. Upto this stage there is no dispute. The controversy is over the meaning of the words “relief is incapable of valuation”. On the one hand, it is said that these words, mean that the relief should be incapable of valuation under any provision of the Act, on the other hand, it is asserted that these words mean that the relief should be incapable of market or economic valuation. On the one hand, it is said that these words, mean that the relief should be incapable of valuation under any provision of the Act, on the other hand, it is asserted that these words mean that the relief should be incapable of market or economic valuation. On behalf of the Chief Inspector of Stamps it is contended that the valuation of the consequential relief has to be the market value of the immovable property in respect of which the relief has been sought. Reliance for this proposition is placed, mainly, on two decisions. In AIR 1944 All 113 (supra), it was held that the consequential relief of injunction cannot be valued according to Section 7(iv-B) as that provision applies to suits for injunction only and not to suits for declaration with a consequential relief. With respect, this does not appear to be the correct position. In a suit for declaration in which the consequential relief of injunction has been prayed for the entire relief has to be valued according to the value of the consequential relief. Therefore, the question still is as to how the consequential relief is to be valued. If the consequential relief is the relief of injunction, then what is to be seen is how the relief of injunction is to be valued. The question as to what is the meaning of the words “incapable of valuation” was neither raised nor decided in this case. The same appears to be the position with respect to the second case of Mrs. Janet Anna Bonarjee v. United Provinces of Agra and Oudh, In this case, it was held by a Division Bench of the Oudh Chief Court that, in a suit for a declaratory decree where consequential relief is prayed for with reference to immovable property and this relief is incapable of valuation, the amount, at which this relief should be valued, is the value of the immovable property computed in accordance with Sub-section (v). To this proposition no exception can be taken but it was further held in this case that Sub-section (iv-B) applies to a suit in which the only relief claimed is one to obtain injunction and not to a suit which clearly falls under Section 7(iv)(a). Again, what is meant by the words ‘ incapable of valuation’ was not considered in this case. Again, what is meant by the words ‘ incapable of valuation’ was not considered in this case. Reference was also made to Vibhuti Narain Singh’s case in this connection. In the penultimate paragraph of the judgment, the learned Judges agreed with the report of the Inspector of Stamps that the valuation of the suit, should be Rs. 10,000/- which was apparently the value of the immovable property in respect of which the reliefs had been prayed for. But it has not been said there that the relief was incapable of valuation or why the valuation at the market price of the property was the correct valuation. If the contention of the Chief Inspector of Stamps is accepted, it would lead to this result that, if the plaintiffs in the two suits had asked only for the relief of injunction, and there appears to have been no obstacle in their way in doing so, they would have had to value the relief at one-tenth or one-fifth of the value of the immovable property; but, since they have asked for the relief of declaration also, they must value the same relief of injunction at the full value of the immovable property. Surely, the Legislature did not intend such an unreasonable result. If the further contention of the Chief Inspector of Stamps that every consequential relief in respect of immovable property is capable of valuation according to the market value of the immovable property is accepted, the last part of the first proviso to Sub-section (iv) (a) would become redundant. The other view that capability or incapability of valuation of a relief depends on whether there is or is not a specific provision in the Act relating to such relief leads to a more equitable and just result. In this view, the relief of injunction, whether prayed for as an independent substantive relief or as a consequential relief, has to be valued in the same manner. It is well-settled that the Court-fees Act is a fiscal measure and is to be strictly construed in favour of the subject. (See Sri Krishna Chandra v. Mahabir Prasad, AIR 1933 All 488(FB). If the language of the provision is capable of two interpretations, then that interpretation should be accepted which is in favour of the subject. It is well-settled that the Court-fees Act is a fiscal measure and is to be strictly construed in favour of the subject. (See Sri Krishna Chandra v. Mahabir Prasad, AIR 1933 All 488(FB). If the language of the provision is capable of two interpretations, then that interpretation should be accepted which is in favour of the subject. It must be kept in mind that the declaratory relief and the consequential relief falling under Section 7(iv)(a) in respect of immovable property have to be valued as one relief and that relief is the consequential relief. What has then to be seen is whether the relief, which has been prayed for as a consequential relief, is capable of valuation or not. When the Act itself provides the manner or method of valuation of a particular relief, how can it be said that that relief is incapable of valuation? If the relief, which is prayed for as a consequential relief, is specifically provided for in the Act, then it is capable of valuation and must be valued according to the provision made in respect of it; but, if the relief is one which is not specifically provided for in the Act, then it is not capable of valuation under the Act and must be valued according to the value of the immovable property in respect of which it has been prayed. Simply because an injunction is sought in conjunction with a declaratory relief, thereby becoming a consequential relief, it does not cease to be a relief of injunction. The value of the suit is the value of the consequential relief that is to say the value of the relief of injunction. The method for valuation of a relief of injunction is specifically provided in Sub-section (iv-B). Where the relief, which is prayed for as a consequential relief, is the relief of injunction, it is capable of valuation under Sub-section (iv-B) and must be valued according to the provisions of this sub-section. 24. In Suit No. 83 of 1953, out of which the special appeals arise, both the Civil Judge as well as the learned Single Judge in appeal have held that the suit was for a declaratory decree in which the consequential relief of injunction was prayed for and was, therefore, governed by Sub-section (iv) (a). This finding is correct. 24. In Suit No. 83 of 1953, out of which the special appeals arise, both the Civil Judge as well as the learned Single Judge in appeal have held that the suit was for a declaratory decree in which the consequential relief of injunction was prayed for and was, therefore, governed by Sub-section (iv) (a). This finding is correct. The consequential relief sought was for an injunction, restraining the defendants from obstructing the plaintiffs from using the hall belonging to the Mandali. The Civil Judge held that the relief of injunction was in respect of immovable property, that it was incapable of valuation and, therefore, must be valued at the market value of the immovable property (hall) which was Rs. 12,000/-. The learned Single Judge held that the relief of injunction was not in respect of any immovable property and that the Court-fee was payable on the amount at which the two reliefs were valued in the plaint, i.e., Rs. 5,200/-. Both these views are erroneous. The injunction is clearly in respect of immovable property, i.e., the hall, and this relief is capable of valuation. As held above, the suit has to be valued according to the value of the relief of injunction and the relief of injunction has to be valued in accordance with the provisions of Sub-section (iv-B). The special appeals are partly allowed, the orders of the learned Single Judge and of the Civil Judge, in so far as they relate to the valuation of the reliefs, are set aside and the trial Court is directed to order the plaintiffs to value the suit according to the valuation of the relief of injunction determined in accordance with Sub-section (iv-B) and to pay Court-fee thereon. It should be borne in mind that the suit was filed in 1953 when the valuation for the relief of injunction under Sub-section (iv-B) had to be made at one-tenth of the value of the immovable property. Parties will bear their own costs throughout.” (Emphasis supplied by me) 12. The law laid down by Full Bench clearly concludes the controversy involved in the present writ petition. 13. The First relief of declaration and the second relief of injunction sought by the petitioners are not independent. The petitioners/plaintiffs shall be entitled to the relief of injunction as a necessary consequence of declaratory relief. The law laid down by Full Bench clearly concludes the controversy involved in the present writ petition. 13. The First relief of declaration and the second relief of injunction sought by the petitioners are not independent. The petitioners/plaintiffs shall be entitled to the relief of injunction as a necessary consequence of declaratory relief. In the present set of facts the relief of injunction is so dependent on the declaratory relief that it cannot be allowed if the principal relief is refused. The relief of injunction directly flows from the right which the petitioners/plaintiffs desired to be declared and, therefore, the relief of injunction is consequential to the declaratory relief. Under the circumstances, the Court Fees shall be payable by the petitioners/plaintiffs in terms of the provisions of Section 7(iv)(a) of the Act. 14. In view of the aforesaid, I do not find any legal infirmity in the impugned orders. The writ petition fails and is, therefore, dismissed.