JUDGMENT B.P. Dharmadhikari, J.
1. The petitioner before this Court is practicing Advocate and he filed Civil Suit for possession and valued it for Rs. 40,500/- against the present respondents. On that suit he paid Court fee of Rs. 4,530.00. The Office of the Court noted objection and put a remark that the stamps are required to be used within 6 months, in view of the provisions of Section 52-B of the Bombay Stamps Act. The office pointed out that the Court fee stamps furnished by the petitioner were purchased prior to 6 months and therefore, are not admissible and cannot be used. The Court heard the petitioner on this objection and by the impugned order held that Section 52-B of the Bombay Stamps Act would govern the above Court fees stamps and therefore the Court fees as paid was not valid. It therefore, directed the petitioner to pay Court fee by valid Court fees stamps on his suit. This order dated 29-3-2005, is questioned by the petitioner in the present writ petition.
2. I have heard Advocate Markandeywar, for petitioner/plaintiff, Mrs. Wandile, learned AGP for respondent Nos. 2, 6 and 7 and Advocate Bernad John, for respondent Nos. 3 and 4. By consent of parties, Rule is made returnable forthwith and the matter is finally heard.
3. Advocate Markandeywar, has invited attention of the Court to the provisions of Bombay Stamps Act, 1958; Bombay Court Fees Act, 1959 and the various cases to contend that the provisions of Bombay Stamps Act, 1958 cannot be used to interpret the provisions of Bombay Court Fees Act, 1959. He contends that, both the Acts occupy totally different field and Stamp Duty and Court Fees are two different aspects. In support he has relied upon the judgment of the learned Single Judge of Allahabad High Court reported at Banney Khan v. Chief Inspector of Stamps. He further states that the provisions of Bombay Court Fees Act shows that it is law enacted with a view to consolidate and amend the law relating to fees taken in Court and hence it is a complete code in this respect. He further states that similarly the Bombay Stamp Act, is also a complete code. In such circumstances, according to him no other law therefore cannot be looked into to interpret the Bombay Court Fees Act. He has relied upon the judgment of the Hon'ble Apex Court reported at , Smt. Rohini Kumari v. Narendra Singh. He further states that the provision like Section 52B added by amendment to Bombay Court Fees Act, 1958 does not exist in Bombay Court Fees Act and hence the intention of legislature in this respect is apparent. He contends that, that intention has been defeated by reading Section 52B in Bombay Court Fees Act. In support he has relied upon the judgment of learned Single Judge of Allahabad High Court reported at , A. Tellery and sons v. Carpet Mazdoor Sabha. He further argues that no artificial restrictions in relation to Court fees in the nature of time limit could have been read impliedly by the Court below, as there was no such specific bar in it. In support he relied upon the judgment of Delhi High Court reported at , Chief Controlling Revenue Authority v. Fertilizer Corporation of India. He has further relied upon the judgment of the Hon'ble Apex Court reported at , Anandji Haridas and Co. v. Engineering Mazdoor Sangh, to contend that the provisions of Bombay Court Fees Act, in this respect are plain and simple and therefore, they ought to have been given effect to by the Court below.
4. As against this, Mrs. Wandile, learned Assistant Government Pleader, has invited attention to the judgment of the Hon'ble Apex Court reported at , The Secretary, Government of Madras v. Zenity Lamp and Electrical Ltd., to point out that the Court fees payable is not tax and also it's exact nature. The learned AGP has invited attention to the provisions of Section 37 of the Bombay Court Fees Act, to point out that the Court fee is collected by stamps; to Section 38 to point out that such stamps may be either impressed or adhesive; and to the provisions of Section 48 to state that nothing in Bombay Court Fees Act, is deemed to affect dues chargeable under the Bombay Stamps Act, 1958. She has also invited, attention to the provisions of Sections 15, 16, 17 and 17-A, to point out that the Court Fees Act contain provisions for refund of proportionate Court fees or excess Court fees and further points out a certificate granted under sections 15, 16, or 17 is to be presented by a person claiming refund, to the Collector within two years. According to her, therefore, there is a time limit imposed by the Bombay Court Fees Act for refund of Court fees.
5. Advocate Bernad John, for respondent Nos. 3 and 4, has also raised the same grounds in defence. He further states that in view of Section 45 of the Bombay Court Fees Act, it is apparent that it contemplated sale of Court fees in the shape of stamps only. He invites attention to Rules framed under Bombay Court Fees Act, particularly Rule 52 thereof, to show that when the Collector has to refund the amount of value of the stamps to the vendor, such application for refund has to be made within 6 months of the date of resignation of such vendor or his death or revocation, of his licence. He further argues that the provisions of Section 51, which prescribes for adjustment of amount of Court fees from the amount of stamp duty payable on final decree/order of partition, also shows that the provisions of the Bombay Stamps Act, 1958 can be taken recourse to, for the purpose of construing the provisions of Bombay Court Fees Act. He also invites attention to Rule 498(4) of the Civil Manual (chapter 24), for similar purpose.
6. The learned AGP has also pointed out the provisions of Bombay Stamp Act in this respect. It is stated that even under the said Act, the stamp duty payable is by impressed stamp or adhesive stamps, and Section 10 prescribes the mode of paying said stamp duty. Attention is invited to the provisions of Section 44, which contains the provisions for refund of excess stamp duty, but, application therefor is to be made within one year from the date of payment of such stamp duty. In this respect attention is also invited to the provisions of Section 48, which contemplates refund on spoiled stamps, under Section 47. It is pointed out that said section requires an application to be made within six months of the date of the instrument or within 6 months from the date of purchase of said stamps. Section 52 of the Bombay Stamps Act, requires application for refund to be moved within 6 months from the date of purchase of stamps which are of no use to the purchaser thereof. Attention is thereafter invited to Section 52-B, which states that the stamps which are not used within a period of 6 months or for which no allowance/refund has been claimed shall be rendered invalid after 6 months. Thus according to the learned AGP all these provisions are required to be read together. According to her Section 52-B has to be read along with Section 37 of the Bombay Court Fees Act, and hence Court Fees stamps not put to any use within 6 months of their purchase are also rendered invalid.
7. It is an admitted position that there is no express provision in Bombay Court Fees Act which states that the Court fees stamps once purchased must be put to use within a period of 6 months and if not so used, the stamp shall be rendered invalid. The various provisions which have been pointed out by the parties insofar as payment of Court fees is concerned, deals with refund of Court fees. Perusal of Government Order No. 55, framed under the Bombay Court Fees Act, which deals with the refund, contemplates an application for refund by a person who has no immediate use of Court fee stamps purchased by him or which are spoiled or rendered invalid or useless. The said rule contemplates the application to be made within a period of 6 months and the government has been given power to extend the said time limit to one year in appropriate cases. However, from the documents supplied by the learned Counsel for respondent Nos. 3 and 4, it appears that this order is issued by the Government of India, on 11-1-1888. Rule 52, of Rules for Sale of Court Fee Stamps under Court Fees Act, 1870 mentioned above deals with refund applications moved by the licensed vendors, after they have surrendered such licenses or their licence is suspended or revoked or after their death. Even the provisions of Civil Manual does not contain any provisions in this respect. On the contrary the provisions of Section 48 of Bombay Court Fees Act, expressly mentions that the payment of Court fees does not in any way affect the stamp duty chargeable under the Bombay Stamps Act. Section 51 of Bombay Court Fees Act, permits adjustments of Court fees paid under the provisions of the Bombay Court Fees Act on final order for effecting partition, sale pertaining to stamp duty payable on it under Bombay Stamps Act, 1958. Section 73 of the Bombay Stamps Act, 1958 also states that no provision under Act, affects the dues chargeable under the Bombay Court Fees Act. In view of this provisions, merely because duty or Court fees is paid through stamps that by itself does not mean that both the acts can be read as complementary to each other. In fact the stamp duty has been classified as judicial and non-judicial and the non-judicial stamps are regulated under the provisions of the Bombay Stamps Act. Judicial stamps/Court fees which are regulated under the provisions of Bombay Court Fees Act, 1959. In this respect when the preamble of either the Bombay Stamp Act, 1958 or the Bombay Court Fees Act, 1959 are looked into both the Acts have been enacted with a view to consolidate and amend the law relating to payment of stamp duties and relating to fees taken in Court etc., respectively.
8. The special bench of Allahabad High Court in judgment reported at (supra), considered the preamble of the Indian Stamp Act, 1899 and has found that the Act is exhaustive and indicates that it is a complete code in itself in relation to the subject dealt by it. The same observations shall also hold good in relation to the provisions of the Bombay Stamps Act and Bombay Court Fees Act. It is therefore, clear that the two Acts are independent and operate in different sphere, and do not encroach upon each other. In this respect reference can be made to (supra), wherein the provisions of Hindu Marriage Act, 1955 have been considered. The relevant observations as contained in para 10 thereof, are as under:
10. In our judgment the view of the Allahabad High Court in the present case must be upheld. The preamble of the Act describes it as one to amend and codify the law relating to marriage among Hindus. It is well known that when a particular branch of law is codified it is intended and the object essentially is that on any matter specifically dealt with by that law it should be sought for in the codified enactment alone when any question arises relating to that matter. Ordinarily when it has been expressly stated that an enactment is meant for codifying the law the Court is not at liberty to look to any other law. The Act not only amends but also codified the law of marriage and it has made fundamental and material changes in the prior law. Section 4 of the Act giving overriding effect to its provisions. Therefore, unless in any other enactment there is a provision which abrogates any provision of the Act or repeals it expressly or by necessary implication the provisions of the Act alone will be applicable to the matters dealt with or covered by the same.
It is thus clear that the provisions of either Bombay Court Fees Act or the Bombay Stamps Act, exclusively govern the payment of Court fees and stamp duty respectively, and there is no question of making reference to one another except to the extent mentioned above.
9. As already stated above, there is no express bar about the user of Court fee stamps after 6 months by the purchaser thereof in Bombay Court Fees Act, 1959. The said bar is being worked out by invoking the provisions of Bombay Stamp Act, 1958. In AIR 1969 Delhi, 130 (supra), the question of interpretation to be put on provisions of Court Fees Act, 1870 arose and it has been held that the said provisions are to be liberally interpreted so as to lessen and not to add to the burden of litigation. It is further observed that unless there is a specific bar under Court Fees Act or under any statutory rule lawfully framed against the use of Court Fee Stamps purchased by a citizen in one State from being used in another State, in Union of India, there is no legal justification for depriving a citizen from using the said stamps in another State than one in which the stamps were purchased.
10. In AIR 1961 Allahabad 321 (supra), the question of inconsistency between the Central Government enactment and State Government Law has been considered. While considering that question the effect of a provision in an existing .law has also been considered in para No. 9. The relevant portion of para No. 9 reads as under:
9. When the State Legislature was amending the U.P. Industrial Disputes Act in January, 1957 by U.P. Act I of 1957 it was fully aware of Section 19 of the Central Industrial Disputes Act. It did not choose to incorporate any similar provision in its own Act. It was not that it was an unintentional omission. In my opinion, if there is a law which is to the knowledge of the legislature and if any analogous law is being made and the Legislature does not incorporate a portion of that law, then the intention of the Legislature clearly is that it did not list to incorporate a similar provision in its Act.
There are certain Acts, where some provisions of Central Act are adopted en bloc. In that case the Legislature by means of one section enacts that the provisions of these sections shall apply in the case of other Acts also. In the present case, there being no such provision, in my opinion, the intention should be taken that the U.P. Legislature never wanted the introduction of the provisions of Section 19 of the Central Industrial Disputes Act to the proceedings under the U.P. Industrial Disputes Act.
11. It is thus apparent that when Section 52-B was added to Bombay Stamps Act, by State Government by amendment in 1989, the State Government could have made similar provisions in Bombay Court Fees Act, 1959. However the State Government has not made any such provision under Bombay Court Fees Act, 1959. In absence of such provision, the Bar sought to be invoked by the respondent by placing reliance upon Section 52-B of the Bombay Stamps Act, cannot be read within Bombay Court Fees Act, 1959. The provisions of Bombay Court Fees Act, 1959 does not contain any time limit for using the Court fees purchased by purchaser himself for his use though when the vendor wants to claim refund of Court fees stamps surrendered by him or on his behalf, the time limit has been provided for. It is to be noted that vendor does not purchase the stamp duty for himself, but he trades in it and his business is subject to the terms and conditions of licence given to him for that purpose. After his death the said Court fees stamps are of no use for his dependents. The same is the position if his licence is revoked or suspended. Therefore, there is a provision for refund of amount of said Court fee to such vendor or his dependent/heirs. However, again the time limit prescribed therefor is 6 months which can be increased up to one year in special cases. It is thus apparent that when a person has purchased the Court fees for his own use, there is no time limit within which the said Court fees must be put to use. In the absence of express provision in Bombay Court Fees Act, 1959 prescribing any such time limit it is not possible to read the provisions in Rule 52 of Rules, under Court Fees Act, 1870 applicable to vendors in that regard. The legislature has made a provision for refund of used Court fees under sections 15, 16, 17 and 17-A of the Bombay Court Fees Act. Thus if the Court fees paid by purchaser is subsequently found to be in excess or unwarranted because of premature termination of the litigation, the legislature has taken precaution to refund to him the proportionate or excess Court fees. Thus, when the legislature has deliberately not provided any time limit for this purpose under Bombay Court Fees Act, 1959, the Court below was not justified in reading such time limit on account of Section 52B of the Bombay Stamps Act. The reasoning given by the trial Court is therefore, unsustainable.
12. The impugned order dated 29-3-2005, passed by the Civil Judge, Senior Division, Nagpur in Regular Civil Suit instituted by the present petitioner is therefore, quashed and set aside. The said Court is directed to treat the Court fees paid by the petitioner as valid and to proceed further in accordance with the law.
13. Rule is made absolute in the aforesaid terms. No costs.