Sau. Pushpadevi W/O Giridharilal ... vs The State Of Maharashtra, Through ...
2003 Latest Caselaw 841 Bom

JUDGMENT

A.P. Deshpande, J.

1. Rule. Rule made returnable forthwith by consent of the parties. Heard Shri S.U. Nemade, learned Counsel for the petitioners and Shri Sonare, learned Assistant Government Pleader for the respondents.

2. As a common question of fact and law is involved in all the three petitions, the said petitions are being disposed of by this common judgment. It is also to be noticed that all the three petitions arise out of the same notification, acquiring the lands of the petitioners. The petitioners were owners in possession of agricultural land situated in village Ghol in Amravati district. Their lands came to be acquired for "Yenas Percolation Tank" by the State Government. Consequent upon acquisition, proceedings for passing of the award were taken up under the provisions of Land Acquisition Act and ultimately, an award came to be passed under Section 11 by the 2nd respondent - Land Acquisition Officer. The award was passed on 18-10-1999, whereas in the case of Gangaram, the award was passed on 16-10-1999. After receipt of notices by the petitioners under Sections 12(2) of the Act, it is undisputed that Reference Applications have been filed within time before the Collector under Section 18 of the Act. In Writ Petition No. 618/02, the petitioners had prayed for grant of time to pay the Court fee and the Court fee has been paid, though not at the time of filing of application seeking reference but thereafter, whereas in the other two writ petitions, though reference applications were admittedly filed in time, the Court fee has not been paid even till today and time was sought before the Collector for payment of the Court fee.

3. The Reference Applications are rejected by the impugned orders mainly on the ground that Court fee has not been paid along with the application seeking reference under Section 18, though other grounds are also stated in the impugned orders. The learned A.G.P. concedes that the other grounds stated in the order are not germane and specifically he admits that the applications are filed within limitation. In this view of the matter, the only question that is required to be answered is - as to whether the failure to pay the Court fee along with the application seeking reference under Section 18 would be fatal to such an application requiring rejection of the Application or could the petitioners be granted time to pay the Court fee.

4. The learned Counsel for the petitioners has placed reliance on the Apex Court judgment in Kashi Ram Namdeo vs. State of Maharashtra reported in 1996(1) Mh.L.J. 652 wherein it is laid down that a person seeking reference under Section 18 is not enjoined under law to pay any Court fee on an application made under Section 18(1) while seeking reference for enhancement of compensation to the Civil Court. The Apex Court has categorically held that the requirement of Section 18(2) is only in regard to making of an application in writing with particulars envisaged under Section 18(2) of the Act requesting the matter to be referred to the Civil Court to decide his objection regarding the amount of compensation. The Land Acquisition Act does not speak of payment of Court fees and that it being a self-contained Code, no Court fee need to be paid. As such, the view that prevailed was that no Court fee stamp was payable along with the application under Section 18. One more judgment of the learned Single Judge of this Court is pressed in service by the learned Counsel for the petitioners in Manjiri Ranganath Kulkarni vs. State of Maharashtra reported in 2003(1) Mh.L.J. 93. In the said judgment, the learned Single Judge has held that considering the provisions contained in Section 18 of the Act and Sections 5 & 40 of the Court fees Act, it is evident that in cases where there is a deficit Court fee paid or no Court fee paid along with the application, the Collector is not empowered to straightaway reject the application unless the fact of deficit Court fee or non-payment of Court fee is brought to the notice of the applicant and the applicant is given reasonable time to make the payment of balance of Court fees or required Court fees for the application as the case may be.

5. The learned A.G.P. has brought to our notice an order passed by the Apex Court in Kashi Ram Namdeo Zambro vs. State of Maharashtra which clarifies that the judgment in Kashi Ram Namdeos case shall not be construed to mean that it overrides the effect of Article 15 of Schedule I of the Bombay Court Fees Act, 1959, in cases where that provision applies.

6. Without entering into the controversy as to whether the Court fee stamp is required to be paid or not, the learned Counsel for the petitioners submits that he is ready and willing to pay the Court fees in other two writ petitions and the same is already paid in the first writ petition. As the petitioners have shown their willingness to pay the Court fee and are not disputing their liability to pay the Court fee, it would be just and fair to grant the petitioners some time to pay the Court fees as the Reference Applications cannot be rejected by the Collector without granting reasonable time to the petitioners to pay the Court fees. In the facts and circumstances of the present cases, we are of the clear view that the order passed by the Collector rejecting the reference applications on the ground that the Court fee has not been paid along with the application under Section 18, is unjust and unfair and hence, it is required to be quashed and set aside.

6.In the result, we pass the following order :-

The Writ Petitions are allowed. The impugned common order dated 24-9-2001 passed by the Collector is quashed and set aside. The petitioners shall deposit the amount of Court fees with the respondent nos. 1 & 2 within a period of eight weeks from today. On such deposit of the amount of Court fee by the petitioners with respondent nos. 1 & 2, the respondent nos. 1 & 2 shall make a reference to the Civil Court within a period of two weeks from the date of payment of Court fees. Failure to deposit the Court fee would result in confirmation of the impugned order passed by the Collector. In the facts of the case, there shall be no order as to costs.