MOHANLAL HOCHANDRA DOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a revisional application on behalf of the original applicant in Land Acquisition Reference No. 8 of 1961 decided by the Court of Civil Judge, Senior Division, Kolhapur, by its judgment and order dated September 19, 1962. The learned Judge disposed of Land Acquisition Reference Nos. 8 of 1961 and 17 of 1960 by a common judgment. The learned Judge did not try the references on merits or on questions of facts. On behalf of the State Government it was contended before him that the written applications made by the applicants to the Collector under section 18 of the Land Acquisition Act that the matters be referred by the Collector for determination by the Court had been insufficiently stamped with the Court-fees stamp of 65 nps. Under Article 15 of Schedule (1) of the Bombay Court Fees Act, an application to the Collector for a reference to the Court under section 18 of the Land Acquisition Act was required to bear Court fees stamp of one half of ad valorem fee on the difference. , if any, between the amount awarded by the Collector and the amount claimed by the applicant, according to the scale prescribed under Article 1 of Schedule I, subject to a minimum stamp of fifteen rupees. The contention under those circumstances was that the applications did not bear sufficient Court fees stamp and were therefore invalid. The Collector was, therefore, not competent to make the above references to the Court. The Court negatived the contention made on behalf of the applicant that the reference Court was not invested with power to decide that reference made by the Collector under section 18 was not competent or invalid. It negatives the contention that it had no jurisdiction to decide the question of the applications being sufficiently stamped and that the question was liable to be finally decided and disposed of by the Collector. In arriving at its above findings the Court refered to the decisions in the cases of nanu Kothari, (1906) ILR 30 Bom 275 and Mahadeo Krishna Palkar v. Mamlatdar of Alibag, AIR 1944 Bom 200. It negatived the contention that these decisions related to the question of bar of limitation only. It took the view that the observations of this court in those decisions were sufficient to show that the reference Court was bound to examine the fact as to whether the Collector had made the reference in accordance with the conditions of section 18. The Court was therefore,. entitled to see that there was a valid duly stamped application before the Collector asking for reference. The Court found that the applications for reference had not been sufficiently stamped and were invalid and the reference was, therefore, not competent. It also negatives the contentions made on behalf of the applicants that under section 149 of the Code of Civil Procedure the applicants should be allowed to make good the deficiency in the Court fees stamp. In that connection it observed that a reference under the Land Acquisition Act cannot be held to be "civil Proceedings" and the provisions in section 149 were no applicable. It found that under section 40 of the Court Fees Act in cases relating to applications for reference under section 18 of the Land Acquisition Act directions for payment of further Court fees stamp could only be given by the head of the office where the original application was filed. Having made the above findings the order that the Court passed was that "the applications and papers received from the Collector be returned. The amounts of compensation, if received in Court, be returned to the Collector".

(2.) IN support of this revisional application on behalf of the applicant Mr. Walawalkar has once again contended that the question of deficiency in Court fees paid in respect of an application under section 18 of the Land Acquisition Act was liable to be finally disposed of by the Collector who reserved the application. That is the result of the scheme under section 5 of the Bombay Court Fees Act. The contention is further developed by reference to the provisions in section 40 of the Act. The matter of deficiency under that section is liable to be ascertained and durable at the instance of the Head of the Officer receiving the relevant document. It is contended that in deciding the question of deficiency of Court fees stamp paid in respect of the application submitted to the Collector under section 18, the lower Court has acted entirely without jurisdiction. Two further alternative contentions are made as follows: (1) If the Court was entitled to consider the question of deficiency of Court fees stamp the provisions of section 149 of the Code of Civil Procedure were applicable and the application of the applicant to cure deficiency should have been granted (2) In the whole of the defence statement the question of deficiency in Court fees stamp had not been raised. The question was for the first time raised at the time of the final arguments. The Court below should not have allowed that question to be raised at that late stage. For these reasons also the judgment and the findings made by the court below are liable to be reversed.

(3.) IN reply Mr. Deshpande, the learned Assistant Government Pleader, has contended that it has been repeatedly held in cases dealing with applications filed before the Collector after expiry of the time prescribed that the reference Court has jurisdiction to examine the fact as to whether in making the reference the Collector had complied with the conditions contained in Section 18. The lower Court was therefore right in holding that it had jurisdiction to consider the question of deficiency in Court fees stamp. In that connection direct reliance is placed by Mr. Deshpande on the provisions in section 40 of the Court Fees Act. Mr. Deshpande has also contended that it is clear from the language in section 149 of the Civil Procedure Code that the provisions therein do not apply to any application made under section 18 to the Collector for reference to Court.