Bhagawat (Deceased) Beer Pal And 5 ... vs State Of U.P. Thru' Collector, ...
2017 Latest Caselaw 6067 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 
Case :- FIRST APPEAL DEFECTIVE No. - 1033 of 2004
 
Appellant :- Bhagawat (Deceased) Beer Pal And 5 Others
 
Respondent :- State Of U.P. Thru' Collector, Ghaziabad And Another
 
Counsel for Appellant :- V.D. Dubey,Devendra Saini
 
Counsel for Respondent :- Pankaj Mithal,Awadesh Tiwari,S.C.
 
with
 
Case :- FIRST APPEAL No. - 55 of 2017
 
Appellant :- M/S U.P. State Industrial Development Corp. Ltd.
 
Respondent :- Sharda Devi (Dead) And 5 Others
 
Counsel for Appellant :- K.S. Ojha
 
Counsel for Respondent :- Manvardhan,S.K. Lal
 
with
 
Case :- FIRST APPEAL DEFECTIVE No. - 100 of 2013
 
Appellant :- Keshav Prasad Singh And Others
 
Respondent :- Collector Chandauli And Anr.
 
Counsel for Appellant :- K.S. Shukla
 
with
 

 
Case :- FIRST APPEAL No. - 569 of 1997
 
Appellant :- Raghunath
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pankaj Mithal,Madan Mohan
 
Counsel for Respondent :- S.C.
 

 
With
 
Case :- FIRST APPEAL DEFECTIVE No. - 244 of 2017
 
Appellant :- Mohd. Yunus
 
Respondent :- Collector Bareilly & Another
 
Counsel for Appellant :- Ambrish Chandra Pandey
 
Counsel for Respondent :- Prakash Padia
 
with 
 
Case :- FIRST APPEAL DEFECTIVE No. - 245 of 2017
 
Appellant :- Chandra Pal & Another
 
Respondent :- Collector Bareilly & Another
 
Counsel for Appellant :- Ambrish Chandra Pandey
 
Counsel for Respondent :- Prakash Padia
 
with 
 
Case :- FIRST APPEAL DEFECTIVE No. - 246 of 2017
 
Appellant :- Ram Bharose (Deceased) & 6 Others
 
Respondent :- Collector Bareilly & Another
 
Counsel for Appellant :- Ambrish Chandra Pandey
 
Counsel for Respondent :- Prakash Padia
 

 
Hon'ble Arun Tandon,J.

Hon'ble Rajiv Joshi,J.

First Appeal (Defective) No. 1033 of 2004, First Appeal No. 55 of 2017, First Appeal No. 100 (defective) of 2013, First Appeal No. 569 of 1997, First Appeal (Defective) No. 244 of 2017, First Appeal (Defective) No. 245 of 2017 and First Appeal (Defective) No. 246 of 2017 are Seven First Appeals filed under Section 54 of the Land Acquisition Act. In all these appeals, there has been deficiency in payment of the required Court fees at the time of the presentation of the appeal.

First Appeal (Defective) No. 1033 of 2004 was presented before the Stamp Reporter on 16th December, 2004 when it was reported to be deficient by Rs. 72,997.50/-. An application seeking four months time was filed along with the appeal before the Court being Application No. 237211 of 2004. No order was passed on the application, but the deficiency was not made good even after expiry of the four months from the date the appeal was presented. This appeal was dismissed by the High Court on 27.4.2007 for want of prosecution. Restoration application was filed which did mention that the appeal was insufficient stamp but no attempt was made to make good the deficiency even at that stage. An application for accepting for deficient court fees was made on 4.4.2017 i.e. after 13 years of the institution of the appeal which has been accepted without any reasons being recorded. The appeal was restored on 25.5.2017.

First Appeal No. 55 of 2017 has been filed by U.P.S.I.D.C. on 11.5.2015 the Stamp Reporter reported the deficiency of Rs. 83,765/-, application No. 171080 was made without disclosing any reason, as to why the U.P. S.I.D.C. is not in a position to made good the deficiency seeking extension of time. Notice were issued on Section 5 Application on 18.5.2015. Deficient court fees was supplied on 7.7.2015. No order has been passed by the Court accepting the court fees supported by reasons.

First Appeal No. 100 (Defective) of 2013 was reported to be deficient in court fees by Rs. 92,877.50/- on 19.3.2013 by the Stamp Reporter. Application No. 95540 of 2013 was filed asking for two months time to make good the deficiency, which was allowed by the Court vide order dated 2.4.2013. The deficiency has been made good only by way of deposit made on 11.1.2014, 15.1.2017, 24.10.2017 and 27.10.2017 i.e. after four years, no application supported by reasons for delay in supply of the court fees has been brought to the notice of the Court.

First Appeal No. 569 of 1997 (Regular number) was reported to be insufficient stamp by Rs. 78,290/- the deficiency is stated to have been removed only on 15 June 1997.

Thereafter an amendment application was made for enhancement of the rate of compensation. The appellant had claimed compensation at the rate of Rs. 40 per square yard in his original appeal while by means of the amendment the claimants sought enhancement of compensation at Rs. 85 per square yard. He supplied the amount of court fees to be deposited in terms of the amendment which was granted i.e. 1,25,000/- on 16.10.2015 which has been accepted without recording any reasons in support thereof.

First Appeal (Defective) No. 244 of 2017, First Appeal (Defective)No. 245 of 2017 and First Appeal(Defective) No. 246 of 2017 where all reported on 4.8.2017 to be deficient in court fees by Rs.50,652/-, Rs. 60,402/- and Rs. 51,777/- respectively by stamp report. In all three appeals application seeking four months time for making good the deficiency was filed. The deficiency has not been made good till date, yet, notices have been issued on Section 5 application.

It is further apparent from the record that even without making the deficiency good the Courts have proceeded either to issue notice on Section 5 application filed for condonation of delay after registration of the appeal with defective number or to issue notice to the respondents on appeal. In some cases the deficiency has been made good after years of institution of the proceedings without there being any order, recording the satisfaction of the court concerned in the matter of delay in supply of the deficient court fees.

While sitting in the present jurisdiction pertaining to the first appeals, we had noticed that this has been the practice. We had found that even Government instrumentalities like U.P.S.I.D.C. and Development Authorities have been filing appeal with deficient court fees, what to talk of private persons.

We had therefore, passed an order in Appeal No. 569 of 1997, appeal No. 1033 of 2004 and another Appeal No. 297 of 2014 framing two issues for consideration:

(a) What should be the date up to which the appellant must explain the delay in filling of the appeal, whether it should be the date on which the appeal was instituted or the date on which the deficiency has been made good.

(b) The Court while permitting the appellant to make good the deficiency is required to insist upon the appellant to pay interest upon withheld amount of the court fees or not.

We had requested Sri Manish Goyal, Additional Advocate General to assist the Court in the matter.

The matter has been heard at some length with the assistance provided by Sri Manish Goyal, Additional Advocate General. On examination of the relevant provisions which have been brought to our notice, we find that the procedure in the matter of acceptance acting upon the first appeals which are deficient in court fees in the High Court is not in accordance with the provisions applicable.

We therefore, proceed to pass a detailed order so that the procedure in the matter of presentation of appeal acceptance and acting thereon, which are deficient in court fees in the High Court is regulated.

We shall first deal with the statutory provisions which are attracted in case of first appeal which is deficient in court fee.

Payment of court fees on appeals to be filed before the Hon'ble High Court is regulated by the provisions of the Courts Fees Act, 1870 (hereinafter referred to 'Court Fees Act') as amended in the State of Uttar Pradesh Sections 6(1), 6(2), 6(3) and 6(4) as applicable in the State of Uttar Pradesh read as under:

"6. Fees on documents filed, etc., in Mofassil Courts or in Public Offices.-(1) Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the first or second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document:

(Provided that where such document relates to any suit, appeal or other proceeding under the (any law relating to land tenures or land revenue), the fee payable shall be three-quarters of the fee indicated in either of the said schedules except where the amount or value of the subject-matter of the suit, appeal or proceeding to which it relates exceeds Rs. 500:

Provided further that the fee payable in respect of any such document as is mentioned in the foregoing proviso shall not be less than (one and one-fourth of)that indicated by either of the said Schedules before (the first day of May, 1936)

(Explanation.- Where the amount of fee prescribed in the Schedules contains any fraction of a rupee below [twenty-five naye paise] or above [ twenty-five naya paise] but below [fifty naye paise] or above [fifty-naye paise] but below [seventy-five naye paise], or above [seventy-five naye paise] but below one rupee, the proper fee shall be an amount rounded off to the next higher quarter of a rupee as hereinafter appearing in the said Schedules.]

[(2) Notwithstanding the provisions of sub-section (1), a Court may receive a plaint of memorandum of appeal in respect of which an insufficient fee has been paid, but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court-fee within such time as may from time to time be fixed by the Court].

[(3) If a question of deficiency in court-fee in respect of any plaint or memorandum of appeal is raised by an officer mentioned in Section 24-A the Court shall, before proceeding further with the suit or appeal, record a finding whether the court-fee paid is sufficient or not. If the Court finds that the court-fee paid is insufficient, it shall call upon the plaintiff or the appellant, as the case may be, to make good the deficiency within such time as it may fix, and in case of default shall reject the plaint or memorandum of appeal:

Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, give security, to the satisfaction of the Court, for payment of the deficiency in court-fee within such further time as the Court may allow. In no case however, shall judgment be delivered unless the deficiency in court-fee has been made good, and if the deficiency is not made good within such time as the Court may from time to time allow, the Court may dismiss the suit or appeal.

(4) Whenever a question of the proper amount of court-fee payable is raised otherwise than under sub-section (3), the Court shall decide such question before proceeding with any other issue."

Reference may also be had to Section 37 of the Court Fees Act as added by U.P. Amending Act No. 4 of 1961, Section 37 reads as under:

"[37. All fees shall be charged and collected under this Act at the rate indicated in the First or Second Schedule to this Act, as the case may be, on the date on which the doucment chargeable to the court-fee is or was presented].

From a simple reading of the aforesaid Section 6(1) of the Act, it shall be clear that no appeal shall be filed recorded upon unless the requisite court fees as per schedule 1 and 2 of the Court Fees Act is deposited. However, under Section 6(2) a power has been conferred upon High Court to accept an appeal with deficient court fees and to grant time to make good the deficiency within the time to be specified but it cannot be acted upon unless the requisite Court fee is paid. In case the court fees is not deposited within the time specified (which may be extend from time to time) the appeal is liable to be rejected under Section 6 sub-Section-3.

What is further relevant to note is that if the deficient court fees is deposited within the time specified by the Court than the date of institution of the appeal shall be treated to be the date on which it was filed with deficient court fees.

We may now refer to the provisions as contained in the High Court Rules regulating the filing of an appeal before this Court. Chapter -11 of the Allahabad High Court Rules 1952 deals with the filling of the appeals Rule 3 contemplates that an appeal shall be presented duly stamped before the Stamp Reporter of this Court.

The Stamp Report is required to submit a report, categorically stating as to whether the appeal has been sufficiently stamped or there is any deficiency. If the Stamp Reporter records deficiency in the matter of payment of court fees, the appellant has a right to file his objection before the Taxing Officer. The Taxing Officer in turn would decide the objections and if he finds substance in the challenge made by the appellant to the report of the Stamp Reporter he would hold that the appeal has been sufficiently stamped and thereafter the matter shall be placed before the Court. In case Taxing Officer decides otherwise then the appellant has a right to challenge the report of the taxing officer before the concerned court. A further right has conferred upon the appellant to file his appeal before the Court where the Taxing Officer has not been able to decide his objection, if in the mean time, the period of limitation is to expire. Such an appeal is to be accepted subject to the orders which may be passed by the Taxing Officer and the objection if any to be taken thereafter before the Court.

We may record that objections to the report of the Stamp Report are to be submitted within three weeks, failing which it is presumed that the appellant does want to challenge the deficiency as reported by the Stamp Reporter.

We may now refer to under Section 149 Civil Procedure Code which reads as follows:

"Section 149. Power to make up deficiency of court-fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as is such fee had been paid in the first instance."

On a reading of Section 149 Civil Procedure Code, it shall be clear that a discretion has been conferred upon the Court to accept the deficient court fees at any stage. A Division Bench of this Court in the Case of Someshwar Nath Bhargava and etc. Vs. Smt. Kusum Kumai (deceased by LR) and Others reported in (1992)3 AWC 1281 has held that Section 149 C.P.C. is subservient to Section 6 of the Court Fees Act and therefore, the discretion conferred upon the Court under Section 149 has to be exercised having regard to the provisions of Section 6 of the Court Fees Act.

Thus, at the first instance an appeal is to be presented/accepted/acted upon by the Court only when it is sufficiently stamp. Meaning thereby that an appeal which is not sufficiently stamp cannot be accepted nor can be acted upon.

We may at this stage itself clarify that if there is an application Section 5 of the Limitation Act for condoning the delay in an appeal filed which is not sufficiently stamp, the Court cannot proceed to issue notice on Section 5 application without insisting upon the appellant to make good the deficiency.

In our opinion, on an appeal which is deficient in court fees being placed before the Court it has to examine:

(a) Whether there is an any application seeking extension of time for making good the deficiency. If there is any such application the Court must examine the reasons disclose therein and thereafter pass an order granting time for making good the deficiency before acting upon the appeal.

(b) If the deficiency is not made good within the time permitted by the Court at the first instance or as may have been extended from time to time then the only course left with the Court is to dismiss the appeal for want of proper court fees. See Full Bench Judgment of this Court in the case of Chief Inspector of Stamps Vs. Dr. Pragnarain AIR 1946 ALL 355 (FB).

We may further record that from a conjoint reading of the provisions of various sub-Section of Section 6, it is apparent that acceptance of deficient court fees is not to be so done as a matter of course. Acceptance of deficient court fees subsequent to the presentation of appeal has to be by means of order in writing of the Court supported by reasons accepting the cause for the delay in the supply of the Court fees and not otherwise.

This we are recording keeping in mind the provisions of Section 6 of the Courts Fees Act which prohibits acceptance of documents/appeal unless it is sufficiently stamp and further in view of the Section 37 of the Court Fees Act as amended in the State of Uttar Pradesh which prohibits acceptance of documents which are not sufficiently stamped. Reference in that regard may be had to the Division Bench of this Court in case of Bhikkan Vs. Avas Vikas reported in 1999 Volume 2 AWC 942.

We find that the procedure prescribed under the aforesaid statutory provisions is not being followed, only because the office is not reporting the matter to be considered by the Court at the first instance when an insufficiently stamped appeal is presented. The Court has to ensure that the required court fee has been paid and it is thereafter, it can act upon the appeal. No notice can be issued on Section 5 application unless the appeal is sufficiently stamped as that will amount to negation of the provisions of Section 6 of the Courts Fees Act read with Section 37 of the Court Fees Act and would also run contrary to the scheme contemplated by Chapter 11 of the Allahabad High Courts Rules in the matter procedure to be adopted on insufficiently stamp appeals.

We may clarify that under Section 6 sub Clause 3 of the Court Fees Act, it is only on sufficient reasons to be recorded in writing that the Court may proceed with an appeal which is insufficiently stamped to hear the same. Even in that case the judgment is not to be delivered unless the deficiency is made good. This is by way of exception as would be seen from the language of the proviso itself with a rider that sufficient reasons have to be recorded for such a course being followed. This implies that there has to application of mind by the Court as reflected from the recorded reasons for proceedings with the appeal even in absence of sufficient court fees having been paid.

We find that because of the said procedure being not followed in first appeals, insufficiently stamped, notice on Section 5 applications are being issued regularly because of the lapse on the part of the office of the High Court to put up a proper office note for consideration of the issue pertaining to deficiency in the court fee first. Practically in all such cases even when appeal is not sufficiently stamped the deficient court fee remains unpaid for years together. In some case, High Court has considered, Section 5 applications by issuing notice to the respondents and to even condone the delay in filling of the appeal and to allocate a regular number to the appeal after the delay is condoned without ensuring deposit of the deficient court fees.

We are further surprised to note that even the instrumentalities of the State like U.P.S.I.D.C. and Development Authorities are filing first appeals without deposit of the requisite court fees. The deficient court fee is paid after years in some cases. There can be hardly any reason for an instrumentality of the State like U.P.S.I.D.C. and Development Authorities which have sufficient funds available with them to not to supply the court fees on the date the appeal is instituted.

Another aspect of the matter which reads to be highlighted specifically in respect of appeals in Land Acquisition matters is that after a reference is decided by the concerned District Court, large number of appeals are filed challenging the orders by either of the parties or by both of them.

The claimants would seek increase in the compensation while the Development Authorities/State Government would seek reduction in the rate of compensation awarded. It has been noticed that where the appeals are filed by the claimants, in only one or more appeal the due court fees is made good. The matter is got adjudicated if the decision goes in favour of the claimants then all other claimants whose appeals have been lying without payment of sufficient of court fees come up with the prayer to make good the deficiency for getting similar favourable order. There is always a danger in such matters that if the appeal of one claimant is dismissed then all other claimants may get their appeals dismissed for want of insufficient court fees.

Similar would be situation if the instrumental of the State gets one of its appeal out of the bunch decided and than to take a decision to make good the deficiency in other cases or not.

Such danger of misuse of the process of the Court has to be avoided. It is for this reasons that we insist that immediately on presentation of an appeal with deficient court fees, the office shall record the deficiency and inform the Court concerned by means of the office report to consider the issue pertaining to deficiency of the court fee and to pass a reasoned order granting such time as it deem fit and reasonable.

The office report shall mention that the appeal is incompetent for want of payment of sufficient court fees and must inform the Court, that such an appeal must be supported by an application for granting time to make good the deficiency. The application must be disposed of first before proceedings any further in the matter.

We may now examined as up to what time the Court can extend the time to deposit the deficient court fee, can it be years or it has to be reasonable time having regard to the facts disclosed in the application seeking time to make good the deficiency.

We cannot visualize the circumstances for which a particular appellant may not be in a position to made good the deficiency on the date he presents the appeal therefore, we cannot lay down any hard and fast rule limiting the time period during which the deficiency is to be made good.

However, insufficiently stamped appeals must be supported by an application seeking extension of time to make good the deficiency. This application must be supported by an affidavit disclosing relevant facts for extension of time. On the day, the appeal is presented before Court there has to be an order by the competent Court either accepting the request for extension of time or rejecting the same or by reasons recorded. It cannot be mechanical.

Similarly, we are also of the opinion that the Court must insist upon the deficiency being make good before proceedings any further in the matter within the time specified in the order to be passed on such an application or within the time as may be extended from time to time. In case there is non-deposit of the requisite court fees within the extended time, the appeal must be dismissed by the Court, in view of the full Bench judgment of this Court in the case of Chief Inspector of Stamps (supra).

While discretion has been conferred upon the Court concerned to extend the time for deposit of requisite court fees but the discretion is not absolute. There has to be a reasonable exercise of discretion by the Court. A discretion can be said to be reasonably exercised only when it is supported by reason borne out, from the facts as disclosed in the affidavit filed seeking extension of time to make good the deficiency. If the Court finds that the reasons furnished for the delay are not sufficient or bonafide, the Court must put the appellant to terms, which may in a given case be fine for delay in deposit of the court fees or interest at the bank rate.

We further direct that the appeal which are insufficiently stamp must be listed under the heading Incompetent Appeals in the cause list to be published for the purpose so that the Court is made aware that orders are to be passed on the application seeking extension time to deposit the deficient court fees at the first instance.

Copy of this Order may be forwarded to the Registrar General for strict compliance.

All the appeals are de-linked to be listed separately in the week commencing 13th November, 2017.

Order Date :- 31.10.2017

Akbar

Hon'ble Arun Tandon,J.

Hon'ble Rajiv Joshi,J.

For orders, see my order date passed on the separate sheets.

Order Date: 31.10.2017

Akbar.