GOPAL CHANDRA BISWAS Vs. GURU CHARAN KIRTANIA

JUDGEMENT

(1.) The question raised by this rule relates to the amount of Court-fees which is payable on an applioation under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent and for a declaration that the rents of the assessed lands were liable to be enhanced and that the tenants are not mokararidars as recorded in the finally published Record-of-Bights. The said application was treated as a plaint and the petitioners before me valued the claim for declaration at Rs. 5 and the claim for enhancement of rent from Rs. 57-15-6 to 123-9 per year bore a stamp of annas twelve.

(2.) The Assistant Settlement Officer held that the application claiming enhancement bore the proper Court-fee but in regard to the declaration that the tenancy was not a mokarari one he demanded ad valorem Court-fee on the value of the subject matter in dispute. The value of the subject matter in dispute was directed to be ascertained by the Head Quarters Assistant Settlement Officer of the settlement after hearing the petitioners. This was the order which was made on the 26 October 1926, A review of that order was applied for and on 10th February 1927 the review was rejected, and the Settlement Officer directed that unless the deficit Court-fee was paid within a certain time the application would be dismissed. This rule was issued on the opposite parties and the Senior Government Pleader of the High Court to show cause why the order of 26 October 1926 should not be set aside and the Court-fee already paid be deemed sufficient. I have heard the learned advocates for the petitioner and the Senior Government Pleader who showed cause against the rule.

(3.) The question turns on the construction to be put on Section 105, Clause (3), Ben. Ten. Act, and on the notification of Government made under this Section No. 6954 dated 21 July 1923 published in the Calcutta Gazette and which is quoted below: The notification is as follows: In exercise of the powers conferred by Section 105, Sub-section (3), Ben. Ten. Act, 1885 (8 of 1885), as amended by the Devolution Act, 1928 (38 of 1920, and in modification of the Government of India's notification No. 2254-F dated 8th August, 1918 published in the Gazette of India of 10 idem and republished at p. 465 part IA of the Calcutta Gazette of 14 idem, the Governor-in-Council is pleased to direct that an application made under the said section for a settlement of rent during the preparation of a Rscord-of-Rights under Chap. 10, Ben. Ten. Act, shall bear, (a) a stamp of 12 annas for each tenant making or joining or joined in an application, and, (b) if at any time during the hearing of the application, an issue is raised by the applicant under Section 105-A of the said Act, in addition a stamp to the amount of an ad valorem fee chargeable under Art. 1, Schedule 1, Court-feas Act 1870 (7 of 1870), as amended by the Bengal Court-fees (amendment) Act, 1922 (4 of 1922) subject to a maximum of Rs. 20.