SANGOPANTHA TRAYMBAKRO PATIL Vs. SPECIAL LAND ACQUISITION OFFICER UPPARKRISHNA PROJECT BHIMARAYANAGUDI RAMPUR BIJAPURDISTRICT

JUDGEMENT

(1.) THIS group of appeals pertains to certain litigants whose lands have been acquired and who desire to prefer the present set of appeals praying for enhancement of the compensation amounts. They have averred in the appeal Memo that since they are very poor persons and can hardly afford to pay the prescribed Court fee, that they have paid a certain amount in each case and they have undertaken that the balance amount may be recovered after the court determines the dispute. Basically, what the appellants submit is that they should not be deprived of the right of appeal merely because of their incapacity to tender the prescribed court fees at this point of time, though they do not ask this Court to absolve them from their ultimate obligation to pay the amount. Mr. S.P. Shankar, learned counsel who represents the appellants places reliance on a decision of the Supreme Court in Bhag Singh and Others v Union Territory of Chandigarh wherein, the Supreme Court had occasion to observe that a poor litigant or one who is in financial difficulties should not be deprived of legal redress only because of the financial handicap. I need to record however that the learned Government Advocate has sought to distinguish this decision by pointing out that the facts in that case were slightly different. He is right to the extent that the facts were not identical but to my mind, this Court can certainly be guided by the spirit of the observations in that decision. Mr. S.P. Shankar has pointed out to me that the Division Bench of this Court while passing orders in M.F.A. No. 29 of 1994 on 4-8-1994 permitted the appellants in an identical situation to pay the deficit court fee at a later point of time before the decree was drawn up. Learned Advocate advances the submission, with which I am in complete agreement, that if in situations particularly under the Land Acquisition Act where the claimants are poor agriculturists merely because the value of the lands acquired may be relatively high or merely because the quantum of compensation that they are entitled to claim is of a reasonable large dimension, that the litigant should not be debarred from agitating a just claim only because he does not have the funds to pay the court fees. In this regard, he relies on the provisions of Section 149 of the Civil Procedure Code wherein the law specifically provides for a situation whereby these can be deferred recovery of the court fees. I have- pointed out to the learned counsel that even though the appellants are confident of receiving the enhanced compensation that in the unlikely event of the appellants not succeeding the question that arises is as to how the court fees will be recovered? Mr. shankar states that this Court may record an undertaking on behalf of the appellants that even if they lose that the Government shall be free to recover the deficit court fee from them through the means that it would normally employ for the recovery of such dues. The learned Government Advocate has opposed the present set of applications because he points out that in the first instance, the law requires that the payment of Court fees shall be condition precedent for the presentation of an appeal. He states that it is extremely difficult for the court in any given case to be able to assess the truth of a statement that a litigant is not in a position to pay the court fees and that if permission were to be granted merely on a plea of financial incapacity that it would creates a dangerous precedent in sofar as such applications even in undeserving cases may be putforward but more importantly, the submission in law is that where doing of something is condition precedent, that a deferment of that requirement would constitute a breach of the legal provision. In this case, the learned Government Advocate points out that it is a mandatory provision. Court fees Act is therefore not a situation where this Court can exercise discretion. Asfar as this argument is concerned, all that I need to record is that no general order of immunity is being passed and that wherever a plea of the present type comes forward, the Court will always examine the circumstances and situation from case to case before granting any indulgence. Secondly, what needs to be further recorded is that the payment of court fees is not being waived but that it is being deferred and that this is also being done because there is a specific provision in the statute namely, Civil Procedure Code which empowers the court to do so. By virtue of the rule of harmonious construction the requirement of the court fees Act will have to be read along with the provisions of the Civil Procedure Code and if in an appropriate case, to my mind, the court is of the view that judicial discretion should permit the deferment of the payment of the court fees, it would be perfectly justified. I need to further record that in M.F.A. No. 29 of 1994 this is precisely what the Division Bench of this Court has permitted. The learned Government Advocate submits that the order in question should not bind the Government in all other cases and to that extent, he is right in sofar as the court, be it a single Judge or Division Bench, will examine each individual case before granting any such indulgence. Having regard to the aforesaid position, to my mind, the appellants are entitled to succeed in their application. The office shall register the appeals on the basis of the court fees that have already been paid. The appellants shall however give a written undertaking in each of the appeals to the effect that the deficit court fees may be recovered from them after the passing of final orders in the appeals. In the event of the appellants succeeding, it shall be open to the Government to deduct the deficit court fees that are payable in each of the cases prior to depositing the enhanced compensation or paying over the same to the appellants. The appellants shall also in the same undertaking record that in the event of their not succeeding in the appeals, that the Government shall be free to recover the deficit court fees from them. Before parting with this order, I need to observe that a court will always have to lean in favour of a poor handicapped litigant particularly in instances where it is demonstrated that the party concerned is financially handicapped and more so, in those of the cases such as land acquisition proceedings where admittedly the claimants are poor agriculturists and who have lost their lands which are virtually their main source of livelihood and where, the raising of the relatively heavy amounts to pay the court fee may push the litigants in to further financial difficulties. Office to register the above set of appeals and to post the same for admission along with M.F.A. No. 51 of 1995.