IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
Letters Patent Appeal No. 319 of 2008
Writ Petition No. 2231 of 2008 [decided on 21-8-2008]
Vijaykumar son of Prithvirajji
aged about 45 years,
resident of 504, Shiv
Hill Road, Gokulpeth,
Nagpur. .... Appellant. Versus
1. Maharashtra State
through its Executive
2. State of Maharashtra,
Ministry of Revenue,
Mumbai-400 032. .... Respondents. *****
Mr. R.L. Khapre, Adv., for the appellant. Mr. R.E. Moharir, Adv., for Respondent No.1. Mr. N.W. Sambre, Govt. Pleader for respondent no.2. *****
CORAM : B.P. DHARMADHIKARI
AND F.M. REIS, JJ.
Date : 21st July, 2009.
ORAL JUDGMENT [Per B.P.Dharmadhikari, J]:
1. Considering the nature of controversy, we have heard parties at sufficient length and perused the Judgment dated 21st August, 2008 delivered by learned Single Judge in Writ Petition No. 2231 of 2008 dismissing the Writ Petition filed by present appellant. Appeal is admitted and heard finally by consent.
2. Appellant has filed an application under Section 16 (3) of the Indian Telegraph Act, 1885, before District Judge, Amravati, claiming compensation, alleging that amount offered to him for acquisition of about 41,190 sq.ft. + 13,450 sq.ft. Of land in 1990 is inadequate. The appellant demanded compensation of Rs.6,00,000-00 [rupees six lakhs only] with 12 per cent interest.
3. An objection was raised about payment of Court 3
Fees, and present respondent no.1 filed application under Order-VII, Rule 11, read with Section 151 of Civil Procedure Code, in that respect.
4. Learned Principal District Judge, Amravati, vide his Order dated 11th February, 2008 allowed that application, and directed applicant to pay Court Fees on his claim of Rs.6,00,000-00. That order formed subject-matter of Writ Petition No. 2231 of 2008, mentioned above.
5. Learned Adv. Mr. Khapre has contended that in view of the meaning given to the word property by Hon ble Apex Court in the reported Judgments in cases of [a] Jilubhai Nanabhai Khachar etc., etc. Vs. State of Gujarat & another [AIR 1995 SC 142][Para 42], and [b] Shri Krishna Gyanoday Sugar Ltd. & another Vs. State of Bihar [AIR 2003 SC 3436] [Para 14], the right of enjoyment and user of immovable property is also a property , and as the appellant has been deprived of it without paying adequate compensation, the claim as made under Section 16 (3) of the Indian Telegraph Act, 1885 is legally sustainable. He states that said claim is 4
squarely covered by Clause (xv) of Sub-Section (1) of Section 20 of the Bombay Court Fees Act, 1959 and appellant, therefore, is not required to pay ad valorem court fee. During arguments, he states that Court Fee paid by appellant is as per Sub-clause (f) of Clause 23 of Schedule-II of the Bombay Court Fees Act; but that also is excessive, and as per law, only court fee payable on application, i.e., Rs.0.65 N.P., ought to have been held sufficient. He has relied upon three judgments of learned Single Judges of this Court, to which we find it convenient to make reference lateron.
6. Learned Adv. Mr. Moharir, on the other hand, has contended that property has not been acquired at all and telegraph lines have been put in place in exercise of powers conferred upon respondent no.1 by invoking Clause (d) of Section 10 of the Indian Telegraph Act, 1885. He, therefore, states that as there is no acquisition and money is being claimed as compensation, the process of adjudication is involved and hence rightly, the learned District Court has demanded court fee under Clause 7 of Schedule I and Section 6 (i) of the Bombay Court Fees Act. 5
7. Learned Govt. Pleader Mr. N.W. Sambre for State Govt. has contended that the provisions of Telegraph Act nowhere contemplate acquisition, and as compensation is being claimed on account of acquisition, the ad valorem court fee as contemplated by Section 6 (i) is required to be paid. He states that for same reasons, the Judgments relied upon by the appellant are not relevant.
8. The provisions of Indian Telegraph Act, 1885 nowhere contemplate acquisition of property, i.e., divesting of title of the appellant. As recourse is to Section 16 (3) of the very same Act, it is obvious that the appellant is also availing his remedy within four corners of said Act. Thus, the act of respondent no.1 is in accordance with provisions of 1885 Act and, therefore, it is clear that title of the property in relation to which compensation is being claimed still vests with appellant.
9. It is, no doubt, true that the Judgments of Hon ble Supreme Court reported at [i] AIR 1995 SC 142, 6
and [ii] AIR 2003 SC 3436 [supra], while interpreting the word property , mentioned various connotations thereof, but those connotations are general and not in the light of Indian Telegraph Act, 1885. When the scheme of Indian Telegraph Act does not permit respondent no.1 to acquire property, and for that purpose to divest the appellant of his title thereto, the wide meaning of said word property , as explained by Hon ble Apex Court, is not relevant for adjudication of present controversy.
10. The perusal of application under Sub-section (3) of Section 16 of the Indian Telegraph Act, as filed by the appellant, clearly shows that he is trying to contend that because of erection of towers in his field, a particular portion thereof is rendered useless and hence he is claiming compensation on that account. Thus, whether said claim is within four corners of Indian Telegraph Act, 1985 or not, is not a question posed for consideration before us. It is clear that the said claim was quantified at Rs.2700/- in 1990 by respondent no.1 and accordingly that amount was paid to appellant.
11. Not satisfied with that amount, initially Writ Petition No. 2902 of 1990 was filed before this Court and on 20th September, 2004, that Writ Petition was disposed of in view of remedy available to appellant. In short, it is apparent that the quantum of compensation needs to be ascertained in the light of the provisions of Telegraph Act, 1885, and for that purpose, the loss sustained by applicant/appellant also needs to be brought on record.
12. In this background, when the Judgments placed on record by appellant are looked into, in Maria Phitomina Pereira Vs. Rodrigues Construction [1990 (2) Bom. C.R. 77], learned Single Judge has found that there was an agreement between builder and plaintiff, which was regulated by Maharashtra Ownership of Flats [Regulation of Promotion of Construction, Sale Management and Transfer] Act, 1963 [hereinafter referred to as 1963 Act ], and there was a statutory obligation cast upon the builder to execute a sale-deed after the mutual obligations in that agreement were discharged. The plaintiff was seeking execution of 8
sale-deed and the Trial Court held it to be a suit for specific performance and court fee was held to be payable under Section 6 (xi) of Bombay Court Fees Act, 1959. In Para 6, the learned Single Judge has held that such agreement between builder and plaintiff must be treated as a Special Agreement and those agreements are enforceable by a suit and valuation of such suits has to be under Section 6 (iv) (j) of the Bombay Court Fees Act, 1959. It is obvious that only obligation of builder to execute sale-deed was the subject-matter and as such there was no question of quantification of any amount of losses or damages involved in that suit.
13. In case of Vrindavan (Borivali) Co-operative Housing Society Ltd. Vs. Karmarkar Brothers & others [1983 (2) Bom.C.R. 267], again the provision of very same 1963 Act in a suit for declaration and mandatory injunction is considered, and it has been further noticed that it is Section 11 of 1963 Act that contemplated transfer of title not to an individual, and it was not giving rise to any individual/ordinary contract and individual rights and liabilities. The learned Single Judge there found that transfer is 9
required to be made in favour of a Co-operative Society or an Association or a Company and the obligations prescribed in agreement referred to in Section 4 read with Section 11 of that Act are statutory and their performance can be claimed by filing a suit. Thus, same analogy, as in Judgment above, has been given even in this judgment.
14. In the last judgment, namely in case of Rajaram Bhagwati Tiwari & ors. Vs. Municipal Corporation of Greater Bombay & ors. [2004 (supp.2) Bom.C.R.891], the learned Single Judge has considered the suit filed by plaintiff for joint possession along with defendant no.4 on the ground that both of them were contributing their share towards the rent. Contention of plaintiff was that he was seeking performance of the statutory obligation by defendants by claiming joint possession and permanent alternate accommodation under Slum Rehabilitation Act, and as it was a suit for performance of a statutory obligation, it was not susceptible to monetary valuation. Defendant had contended that as joint possession of a flat was being claimed, suit was covered by provisions 10
of Section 6 (iv) (d) of the Bombay Court Fees Act. After considering the provisions of Section 6 (iv) (j) in para 11, the learned Single Judge has found that said Section is a residuary Section which carved out an exception to general rule laid down under Section 6 (iv) (d). It is important to note that Section 6 (iv) (j) begins with words for other declarations. Looking to the nature of controversy before us, it is not necessary for this Bench to go into more details of this judgment.
15. As already stated above, the provisions of Indian Telegraphic Act, 1885, nowhere contemplate acquisition and appellant-plaintiff is seeking compensation with a contention that his land has been acquired by invoking Section 16 (3) of the Telegraph Act. The compensation for damages sustained by him is already tendered to him by respondent no.1 and its adequacy is in dispute. Thus, questions whether it is acquisition as understood in any law or then whether the appellant is entitled to claim market value of property as compensation under Telegraph Act, 1885 and lastly the adequacy or otherwise of the amount of 11
compensation paid to him towards loss/damages need to be gone into by District Judge. In all three judgments referred to above, such type of adjudication was not necessary and the obligation whether statutory or contractual was required to be discharged. The above- mentioned judgments are not, therefore, relevant in present matter.
16. The contention of learned Adv. Mr. Khapre is that appellant has filed proceedings under Section 16 (3) of the Telegraph Act seeking discharge of a statutory obligation to pay compensation under the said Act. The said discharge of a statutory obligation needs adjudication of at least three aspects already mentioned above by us and on that account, no analogy can be drawn from three judgments mentioned above.
17. It is, therefore, apparent that the application as filed by applicant is not covered by Clause (xv) of Section 20 of the Bombay Court Fees Act, which deals with applications for compensation under any law for the time being in force relating to acquisition of property for public purposes. 12
Similarly, Sub-clause (f) of Clause 23 of Schedule II of the Bombay Court Fees Act is also not attracted, because it is applicable only in cases which are not otherwise provided for. Section 6 (i) of the Bombay Court Fees Act speaks of suits for money including suits for damages or compensation and court fee is required to be paid in such suits according to amount claimed. The Schedule I of the Bombay Court Fees Act prescribes rates of ad valorem fees and Clause 7 thereof stipulates the rate at which court fee is payable on any other claim or application. The said clause is, therefore, squarely applicable in present matter.
18. In the circumstances, demand of court fee by Principal District Judge, Amravati, cannot be held to be incorrect. The order passed by learned Single Judge, therefore, needs to be upheld. We do not find any merit in the appeal. Appeal is accordingly dismissed with no orders as to costs.
19. At this stage, learned Adv. Mr. Khapre for appellant urges that the appellant should be given time 13
of one month to pay the court fee. The other side has no objection. Accordingly, time till 31st August, 2009 is granted to appellant pay court fee on his application under Section 16 (3) of the Telegraph Act, 1885.
20. Certified copy of this order is expedited. JUDGE JUDGE -0-0-0-0-