For the reasons which we have recorded, we are of the view that
subSection
(1) of Section 21 is a case of legislation by incorporation.
Therefore, provisions of Section 16 of the Central Court Fees Act will
have to be read in into subSection
(1) of Section 21 of the 1987 Act.
To conclude, Section 16 of the Central Court Fees Act stands
incorporated in subSection
(1) of Section 21 of the said Act of 1987
and, therefore, when a civil suit is referred to a Lok Adalat which ends
with an Award of the Lok Adalat, the plaintiff is entitled to 100% refund
of Court fees paid in the said suit. Thus, a defendant who files a
counter claim in the suit is entitled to 100% refund of the Court fees
paid on a counter claim which is settled before a Lok Adalat.
Therefore, in the three cases in hand, the learned Trial Judge was not
justified in calling upon the petitioner to deposit 75% of the amount of
Court fees out of the refund amount paid to the petitioner. Hence, we
dispose of the petitions by passing the following order :ORDER
(i) We hold and declare that petitioners being plaintiffs in the
suits settled before the Lok Adalat held under the Legal Service
Authority Act, 1987 are entitled to 100% refund of Court fees.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9864 OF 2017
Maharishi Shankarrao MohitePatil Sahakar Sakhar Karkhana Ltd, v/s. The State of Maharashtra
CORAM : A.S. OKA &
M.S. SANKLECHA, J.J.
DATED : 2nd APRIL, 2019
(Per A.S. Oka, J.)
Citation: 2019(5) MHLJ 175,AIR 2019(NOC) 821 Bom
1. On the earlier date, we had put the parties to the notice that
considering the importance of the issue involved, the petitions will be
taken up for final disposal at the admission stage. Accordingly we issue
Rule. The learned Government Pleader waives service for the first
respondent. Considering the nature of controversy, notice to the second
and third respondents is dispensed with.
2. The issue which arises for consideration in these three petitions is
as under :“
Whether a litigant who settles a suit before Lok Adalat held under
the Legal Services Authorities Act, 1987 (for short “the said Act of
1987) is entitled to 100% refund of Court Fees paid ?”
3. The factual aspect in all these three petitions are more or less
same. Therefore, we are referring only to the facts in Writ Petition
No.9864 of 2017. The petitioner filed a money suit against the third
respondent in the Court of Civil Judge, Senior Division at Malshiras,
District Solapur. The suit was placed before the Lok Adalat on 9th April,
2016. A compromise was arrived at between the parties before the Lok
Adalat and a written compromise was tendered on record before the
Lok Adalat. The suit was disposed of in terms of the compromise by the
Lok Adalat and an award was made.
4. On 14th July, 2016, an application was made by the petitioner
before the learned Trial Judge for refund of the entire amount of Court
fees of Rs.3 lakhs paid on the suit. The learned Trial Judge passed an
order granting 100% refund in the light of the provisions of Section 89
of the Civil Procedure Code (for short “CPC”) and Section 21 of the
said Act of 1987. Accordingly, a refund was made of the Court Fees of
Rs.3 lakhs. On the basis of an objection raised during the inspection of
the District Court, the learned Trial Judge issued a notice dated 6th
July, 2017 to the petitioner informing the petitioner that though the
petitioner was entitled to refund of only 25% of the Court fees, the
petitioner was granted full refund. Therefore, the petitioner was called
upon to deposit a sum of Rs.2.25 lakhs. The present petition is filed for
challenging the said communication / demand issued by the learned
Trial Judge to the petitioner.
5. The submission of the learned Counsel appearing for the
petitioner is based on Section 21 of the said Act of 1987. He submitted
that provisions of the Court Fees Act, 1870 (for short “the Central Court
Fees Act”) regarding the refund of the Court fees stands incorporated in
subSection
(1) of Section 21 of the said Act of 1987 and as the
provisions of Central Court Fees Act provide for grant of 100% refund
of Court fees in the suits settled before the Lok Adalat, the Trial Court
was justified in granting 100% refund. He placed reliance on the
observations made by a Division Bench of this Court in the case
of Sanjeevkumar Harakchand Kankariya Vs. Union of India &
Ors.1 and in particular in paragraph 14. He submitted that it is
already held by the Division Bench that Section 21 of the Act of 1987 is
a case of legislation by incorporation.
6. The learned Government Pleader relied upon an affidavit of Shri.
Rajendra Dattaram Sawant, Legal AdvisorcumJoint
Secretary, Law and
Judiciary Department, Mantralaya, Mumbai. The submission of the
learned Government Pleader is that so far as the payment and refund
of Court fees in the Civil Courts in Maharashtra is concerned, the
1 Writ Petition No. 4919 of 2014, decided on 1st October, 2014
Maharashtra Court Fees Act, 1959 (for short “the State Court Fees Act”)
is a complete code by itself. He urged that Section 43 of the State
Court Fees Act provides for repayment of Court fees in case of
settlement and, therefore, in the facts of the case, the repayment or
refund of Court fees will be governed by the Notification dated 8th May,
2013 issued in exercise of powers under subSection
(2) of Section 43
of the State Court Fees Act. He pointed out that going by the said
Notification, in the present case, the petitioner is entitled to refund of
Court fees only to the extent of 25%. He also invited our attention to
the decision of the Division Bench of this Court in the case of
Sanjeevkumar S. Kankariya (supra) and submitted that the question
which arises in these petitions never arose before the Division Bench
and, therefore, what is observed in paragraph 14 cannot be a binding
precedent. He also relied upon the Maharashtra Court Fees
Amendment Act, 2017 (For short “the Amendment Act”) and Section
16A incorporated in the State Court Fees Act by the said Amendment
Act. He pointed out that Section 16A provides for 100% refund of the
Court fees, in case the Court refers the parties to the suit to any of the
modes of settlement of disputes referred in Section 89 of CPC. He also
relied upon an extract of 189th Report on “Revision of Court Fees
Structure” by the Law Commission of India. He, therefore, submitted
that the learned Trial Judge was justified in calling upon the petitioner
to deposit a sum of Rs.2.25 lakhs.
7. We have given careful consideration to the submissions. The
impugned demand made by the learned Trial Judge is not based on a
judicial order and in fact an administrative order was passed calling
upon the petitioner to pay a sum of Rs. 2,25,000/.
That is how we
are entertaining this writ Petition under Article 226 of the Constitution
of India. Section 19 of the said Act of 1987 empowers the State Legal
Services Authorities or District Legal Service Authorities to organize Lok
Adalats as provided therein. Section 20 lays down the cases which can
be placed before the Lok Adalat. Section 21 is material which reads
thus :“
21. Award of Lok Adalat.
(1) Every award of the Lok Adalat shall be deemed to be a decree of
a civil court or, as the case may be, an order of any other court and
where a compromise or settlement has been arrived at, by a Lok
Adalat in a case referred to it under subsection
(1) of section 20,
the courtfree
paid in such case shall be refunded in the
manner provided under the Court Fees Act, 1870.
(2) Every award made by a Lok Adalat shall be final and binding
on all the parties to the dispute, and no appeal shall lie to any court
against the award.”
(emphasis added)
8. Section 16 of the Central Court Fees Act reads thus :
“16. Refund of fee. – Where the Court refers the parties to the suit
to any one of the mode of settlement of dispute referred to in section
89 of the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff
shall be entitled to a certificate from the Court authorising
him to receive back from the collector, the full amount of the
fee paid in respect of such plaint.”
(emphasis added)
We must note that Section 16 is brought on the statute book by
the Act No.46 of 1999 by which there were major amendments carried
out to CPC.
9. On plain reading of Section 21, the provisions of the Central
Court Fees Act relating to refund of Court fees stand incorporated in
Section 21. The question is whether subSection
(1) of Section 21 can
be said to be an instance of a legislation by incorporation. In that
behalf, we may make a useful reference to the two decisions of the
Apex Court. The first one is in the case of Mahindra and Mahindra
Vs. Union of India2 and the second is in the case of C.N.Paramasivam
Vs. Sunrise Plaza3. In paragraph 8 of the decision in the case of
Mahindra and Mahindra (supra), the Apex Court held thus :“
8. The first question that arises for consideration in the
preliminary objection of the respondents is as to what is the
true scope and ambit of an appeal under Section 55. That section
provides inter alia that any person aggrieved by an order made by
2 (1979) 2 SCC 529
3 (2013) 9 SCC 460
the Commission under Section 13 may prefer an appeal to this
Court on "one or more of the grounds specified in section 100 of the
Code of Civil Procedure, 1908". Now at the date when Section 55
was enacted, namely, 27th December, 1969, being the date of
coming into force of the Act, section 100 of the Code of Civil
Procedure specified three grounds on which a second appeal could
be brought to the High Court and one of these grounds was that the
decision appealed against was contrary to law. It was sufficient
under Section 100 as it stood then that there should be a question
of law in order to attract the jurisdiction of the High Court in
second appeal and, therefore, if the reference in Section 55 were to
the grounds set out in the then existing Section 100 , there can be
no doubt that an appeal would lie to this Court under Section 55 on
a question of law. But subsequent to the enactment of Section 55
section 100 of the Code of Civil Procedure was substituted by a new
section by section 37 of the Code of Civil Procedure (Amendment)
Act, 1976 with effect from 1st February, 1977 and the new Section
100 provided that a second appeal shall lie to the High Court only if
the High Court is satisfied that the case involves a substantial
question of law. The three grounds on which a second appeal could
lie under the former Section 100 were abrogated and in their place
only one ground was substituted which was a highly stringent
ground, namely, that there should be a substantial question of law.
This was the new Section 100 which was in force on the date when
the present appeal was preferred by the appellant and the argument
of the respondents was that the maintainability of the appeal was,
therefore, required to be judged by reference to the ground specified
in the new Section 100 and the appeal could be entertained only if
there was a substantial question of law. The respondents leaned
heavily on Section 8(1) of the General Clauses Act, 1897 which
provides:
"8(1) Where this Act, or any Central Act or Regulation
made after the commencement of this Act, repeals and
reenacts,
with or without modification, any provision
of a former enactment, then references in any other
enactment or in any instrument to the provision so
repealed shall, unless a different intention appears, be
construed as references to the provision so reenacted."
and contended that the substitution of the new Section 100
amounted to repeal and reenactment
of the former Section 100
and, therefore, on an application of the rule of interpretation
enacted in Section 8(1), the reference in Section 55 to Section 100
must be construed as reference to the new Section 100 and the
appeal could be maintained only on the ground specified in the new
Section 100, that is, on a substantial question of law. We do not
think this contention is well founded. It ignores the distinction
between a mere reference to or citation of one statute in another
and an incorporation which in effect means bodily lefting a
provision of one enactment and making it a part of another. Where
there is mere reference to or citation of one enactment in another
without incorporation. Section 8(1) applies and the repeal and reenactment
of the provision referred to or cited has the effect set out
in that section and the reference to the provision repealed is
required to be construed as reference to the provision as reenacted.
Such was the case in the Collector of Customs V. Nathella
Sampathu Chetty & Anr. (AIR 1962 SC 316 : (1962) 3 SCR 786]
and New Central Jute Mills Co. Ltd. v. The Assistant Collector of
Central Excise [(1970)2 SCC 820 : AIR 1971 SC 454 : (1971) 2
SCR 92]. But where a provision of one statute is incorporated in
another, the repeal or amendment of the former does not affect the
latter. The effect of incorporation is as if the provision were
written out in the incorporating statute and were a part of it.
Legislation by incorporation is a common legislative device
employed by the legislature, where the legislature for
convenience of drafting incorporates provisions from an
existing statute by reference to that statute instead of setting
out for itself at length the provisions which it desires to adopt.
Once the incorporation is made, the provision incorporated
becomes an integral part of the statute in which it is
transposed and thereafter there is no need to refer to the
statute from which the incorporation is made and any
subsequent amendment made in it has no effect on the
incorporating statute. Lord Esher, M.R., while dealing with
legislation in incorporation in In re. Wood's Estate [(1886) 31
Ch.D. 607] pointed out at p. 615:
"If a subsequent Act brings into itself by reference
some of the clauses of a former Act, the legal effect of
that, as has often been held, is to write those sections
into the new Act just as if they had been actually written
in it with the pen, or printed in it, and, the moment you
have those clauses in the later Act, you have no occasion
to refer to the former Act at all."
(emphasis added)
10. The relevant portion of celebrated work of Justice G.P. Singh on
Principles of Statutory Interpretation has been quoted in paragraph 17
of the decision in the case of C.N. Paramasivam (supra). The paragraph
17 reads thus :“
17. Legislation by incorporation is a device to which legislatures
often take resort for the sake of convenience. The phenomenon is
widely prevalent and has been the subjectmatter
of judicial
pronouncements by courts in this country as much as courts
abroad. Justice G.P. Singh in his celebrated work on Principles of
Statutory Interpretation has explained the concept in the following
words :
“Incorporation of an earlier Act into a later Act is a
legislative device adopted for the sake of convenience in order to
avoid verbatim reproduction of the provisions of the earlier Act into
the later. When an earlier Act or certain of its provisions are
incorporated by reference into a later Act, the provisions so
incorporated become part and parcel of the later Act as if they
had been 'bodily transposed into it'. The effect of incorporation
is admirably stated by Lord Esher, M.R.:
'...If a subsequent Act brings into itself by reference some of
the clauses of a former Act, the legal effect of that, as has often been
held, is to write those sections into the new Act just as if they had
been actually written in it with the pen, or printed in it …..'
[Wood's Estate, In re, ex p Works and Buildings Commissioners,
(1886) 31 Ch D 607 (CA) at p. 615]
Even though only particular sections of an earlier Act are
incorporated into later, in construing the incorporated sections it
may be at times necessary and permissible to refer to other parts of
the earlier statute which are not incorporated. As was stated by
Lord Blackburn:
'When a single section of an Act of Parliament is introduced
into another Act, I think it must be read in the sense which it bore
in the original Act from which it was taken, and that consequently
it is perfectly legitimate to refer to all the rest of that Act in order to
ascertain what the section meant, though those other sections are
not incorporated in the new Act.' [Portsmouth Corpn. V. Smith,
(1885) 10 AC 364 (HL) at p.371]”.
(emphasis added)
11. In the light of the aforesaid two decisions, subSection
(1) of
Section 21 of the Act will have to be interpreted. On plain reading of
subSection
(1) of Section 21, the provisions regarding the refund of
Court fees in relation to the cases settled before the Lok Adalat under
the Central Court Fees Act, have been specifically incorporated in subSection
(1) of Section 21. The effect of such incorporation is that the
provisions of Section 16 of the Central Court Fees Act stand
incorporated in subSection
(1) of Section 21 and Section 16 has now
become a part of subSection
(1) of Section 21. As pointed out earlier,
Section 16 is applicable when a suit referred by the Court to one of the
three modes of settlement under Section 89 of the CPC, which includes
Lok Adalat, is settled. Thus, it is crystal clear that once there is a
settlement of a suit before the Lok Adalat, by virtue of incorporation of
the provisions of Section 16 of the Central Court Fees Act into subSection
(1) of Section 21, the plaintiff in a suit settled before the Lok
Adalat by an Award of a Lok Adalat, will be entitled to 100% refund of
Court fees.
12. At this stage, we must also make a reference to Section 43 of the
State Court Fees Act, which reads thus :“
43. Repayment of fee in certain circumstances :(
1) When any
suit in a Court [Maharashtra or any proceeding instituted by
presenting a petition to a court under the Hindu Marriage Act,
1955,] is settled by agreement of parties before any evidence is
recorded, or any appeal or crossobjection
is settled by
agreement of parties before it is called on for effective hearing by
the Court, half the amount of the fee paid by the plaintiff,
[petitioner appellant, or respondent on the plaint, [petition]
appeal or crossobjection,
as the case may be, shall be repaid to
him by the Court:
Provided that, no such fee shall be repaid if the amount of fee
paid does not exceed [twenty five rupees] or the claim for
repayment is not made within one year from the date on which
the Suit, [proceeding,] appeal or crossobjection
was settled by
agreement.
(2) The State Government may, from time to time, by order,
provide for repayment to the plaintiffs, [petitioners] [complaints
under section 138 of the Negotiable Instruments Act, 1881,]
appellants or respondents of any part of the fee paid by them on
plaints, [petitions] [complaints under section 138 of the
Negotiable Instruments Act, 1881,] appeals or crossobjections,
in suits, [complaints under section 138 of the Negotiable
Instruments Act, 1881,] [proceedings] or appeals disposed of
under such circumstances and subject to such conditions as may
be specified in the order.”
13. We must note that per se Section 43 does not deal with a suit or
an appeal which is settled before the Lok Adalat and which culminates
into an Award made by the Lok Adalat. Reliance was sought to be
placed by the learned Government Pleader on Section 16A as amended
by Maharashtra Act No.X of 2018. The said provision is applicable
when the Court refers the parties to the suit to one of the three
mechanisms under Section 89 of the CPC and the suit is disposed of by
the Court. On conjoint reading of the provisions of Sections 19 and 20
of the said Act of 1987, a Lok Adalat organized under Section 19 is
empowered to dispose of a case referred to it, when parties arrive at
settlement. In such a case, an Award is made by the Lok Adalat in
terms of the settlement. Section 20 contemplates that after a case is
referred to the Lok Adalat by a regular Court, if the parties arrive at
settlement, the case need not go back to regular Court for passing an
order in terms of the settlement, but the Lok Adalat is empowered to
pass an Award in terms of the settlement.
14. It will be also necessary to make a reference to the Statement of
Objects and Reasons of the said Act of 1987. Clauses 1 to 3 read thus :“.
Article 39A
of the Constitution provides that the State shall
secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free
legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
2. With the object of providing free legal aid, Government had
by a Resolution, dated the 26th September, 1980, appointed the
“Committee for Implementing Legal Aid Schemes” (CILAS) under
the chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to
monitor, and implement legal aid programmes on a uniform basis
in all the States and Union territories. CILAS evolved a model
scheme for legal aid programme applicable throughout the country
by which several legal aid and advice Boards have been set up in the
States and Union territories. CILAS is funded wholly by grants
from the Central Government. The Government is accordingly
concerned with the programme of legal aid as it is the
implementation of a constitutional mandate. But on a review of
the working of the CILAS, certain deficiencies have come to the fore.
It is, therefore, felt that it will be desirable to constitute statutory
legal service authorities at the National, State and District levels so
as to provide for the effective monitoring of legal aid programmes.
The Bill provides for the composition of such authorities and for the
funding of these authorities by means of grants from Central
Government and the State Governments. Power has also been
given to the National Committee and the State Committees to
supervise the effective implementation of legal aid scheme.
3. For some time, now Lok Adalats are being constituted at
various places in the country for the disposal, in a summary way
and through the process of arbitration and settlement between the
parties, of a large number of cases expeditiously and with lesser
costs. The institution of Lok Adalats is at present functioning as a
voluntary and conciliatory agency without any statutory backing
for its decisions. It has proved to be very popular in providing for a
speedier system of administration of justice. In view of its growing
popularity, there has been a demand for providing a statutory
backing to this institution and the awards given by Lok Adalats. It
is felt that such a statutory support would not only reduce the
burden of arrears of work in regular Courts, but would also take
justice to the doorsteps
of the poor and the needy and make justice
quicker and less expensive.”
15. Even the preamble of the said Act of 1987 is relevant which reads
thus :“
An Act to constitute legal services authorities to provide free and
competent legal services to the weaker sections of the society to
ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities, and to organise
Lok Adalats to secure that the operation of the legal system
promotes justice on a basis of equal opportunity.”
16. It is crystal clear from the preamble that the Act has been enacted
inter alia with the object of providing for organization of Lok Adalats to
secure that the operation of the legal system promotes justice on the
basis of equal opportunity. On conjoint reading of objects and reasons
as well as the preamble, it is apparent that the said Act of 1987 has
been enacted for giving effect to the directive principles laid down in
Article 39A of the Constitution of India. Perhaps, keeping in mind the
objects of the said Act of 1987 that Section 16 of the Central Court Fees
Act was incorporated in Section 21. The object of incorporating
Section 16 of the Central Court Fees Act in Section 21 of the said Act of
1987 is to encourage the parties to settle the suits before the Lok
Adalat.
17. Now, we may refer to the decision of the Division Bench of this
Court in the case of Sanjeevkumar H. Kankariya (supra). The case
before the Division Bench did not arise out of a settlement in the form
of an Award by the Lok Adalat. That was a case where a suit was
referred to a mediator before whom a settlement was arrived at. The
terms of settlement were presented to the regular Court which passed a
decree in terms of the settlement. Thus, the Division Bench was not
dealing with a case to which subSection
(1) of Section 21 of the said
Act of 1987 was applicable. While dealing with the issue, incidentally
the Division Bench had an occasion to interpret Section 21 of the said
Act of 1987, paragraph 14 reads thus :“
14. In the instant matter, the award has not been passed by the
Lok Adalat. Section 21 of the Legal Services Authorities Act, 1987
stipulates that every award of the Lok Adalat shall be deemed to be
a decree of Civil Court or, as the case may be an order of any other
Court and where a compromise or settlement has been arrived at,
by a Lok Adalat in a case referred to it under subsection
(1) of
section 20, the Courtfee
paid in such case shall be refunded in the
manner provided under the Court Fees Act, 1870. On consideration
of provisions of Section 21 of the Legal Services Authorities Act,
1987, it is evident that an award of the Lok Adalat shall be deemed
to be a decree of Civil Court and the matters wherein award has
been passed by the Lok Adalat are governed by the provisions of
Legal Services Authorities Act and as such, in such of those matters,
refund of court fees shall be in accordance with the provisions of
Court Fees Act, 1870. It is to be noted that in Section 21 of the
Legal Services Authorities Act, 1987, provisions contained in
Court Fees Act, 1870, relating to refund of court fees, are
incorporated. Thus, it is a case of legislation by incorporation
and by virtue of such incorporation, provisions of Court Fees
Act, 1870 relating to refund of court fees, are made applicable
in respect of award passed by the Lok Adalat. The analogy
applicable to the awards of Lok Adalat cannot be applied to the
decrees passed by the Courts on the basis of settlement, even though
same is reached in furtherance of a mediation taken up under
Section 89 of the Code of Civil Procedure. Once it is held that
provisions of Maharashtra Court Fees Act, 1959, are attracted,, it
would be permissible for the State to issue notification prescribing
refund of court fees in exercise of powers conferred under Section
43(2) of the Act. The notification dated 08.05.2013, thus, cannot
be said to be ultra vires the powers exercisable by the State under
Maharashtra Court Fees Act, 1959.”
(emphasis added)
The opinion expressed by the Division Bench supports the view
which we have taken.
18. For the reasons which we have recorded, we are of the view that
subSection
(1) of Section 21 is a case of legislation by incorporation.
Therefore, provisions of Section 16 of the Central Court Fees Act will
have to be read in into subSection
(1) of Section 21 of the 1987 Act.
To conclude, Section 16 of the Central Court Fees Act stands
incorporated in subSection
(1) of Section 21 of the said Act of 1987
and, therefore, when a civil suit is referred to a Lok Adalat which ends
with an Award of the Lok Adalat, the plaintiff is entitled to 100% refund
of Court fees paid in the said suit. Thus, a defendant who files a
counter claim in the suit is entitled to 100% refund of the Court fees
paid on a counter claim which is settled before a Lok Adalat.
Therefore, in the three cases in hand, the learned Trial Judge was not
justified in calling upon the petitioner to deposit 75% of the amount of
Court fees out of the refund amount paid to the petitioner. Hence, we
dispose of the petitions by passing the following order :ORDER
(i) We hold and declare that petitioners being plaintiffs in the
suits settled before the Lok Adalat held under the Legal Service
Authority Act, 1987 are entitled to 100% refund of Court fees.
Therefore, notwithstanding objections raised during inspection or
audit, the petitioners are not liable to refund any part of the
amount of Court fees refund which is received by them;
(ii) We direct the Registrar (JudicialI)
to circulate soft copies
of this judgment to the learned Principal District Judges and the
Principal Judges of the other Courts such as Family Courts, Motor
Accident Claims Tribunal, who in turn shall forward the soft
copies of this judgment to the other Judicial Officers. A soft copy
of this judgment shall be forwarded to the Registrar
(InspectionI)
of this Court;
(iii) Rule is made absolute in the above terms.
(M.S. SANKLECHA, J.) (A. S. OKA, J.)
Print Page
subSection
(1) of Section 21 is a case of legislation by incorporation.
Therefore, provisions of Section 16 of the Central Court Fees Act will
have to be read in into subSection
(1) of Section 21 of the 1987 Act.
To conclude, Section 16 of the Central Court Fees Act stands
incorporated in subSection
(1) of Section 21 of the said Act of 1987
and, therefore, when a civil suit is referred to a Lok Adalat which ends
with an Award of the Lok Adalat, the plaintiff is entitled to 100% refund
of Court fees paid in the said suit. Thus, a defendant who files a
counter claim in the suit is entitled to 100% refund of the Court fees
paid on a counter claim which is settled before a Lok Adalat.
Therefore, in the three cases in hand, the learned Trial Judge was not
justified in calling upon the petitioner to deposit 75% of the amount of
Court fees out of the refund amount paid to the petitioner. Hence, we
dispose of the petitions by passing the following order :ORDER
(i) We hold and declare that petitioners being plaintiffs in the
suits settled before the Lok Adalat held under the Legal Service
Authority Act, 1987 are entitled to 100% refund of Court fees.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9864 OF 2017
Maharishi Shankarrao MohitePatil Sahakar Sakhar Karkhana Ltd, v/s. The State of Maharashtra
CORAM : A.S. OKA &
M.S. SANKLECHA, J.J.
DATED : 2nd APRIL, 2019
(Per A.S. Oka, J.)
Citation: 2019(5) MHLJ 175,AIR 2019(NOC) 821 Bom
1. On the earlier date, we had put the parties to the notice that
considering the importance of the issue involved, the petitions will be
taken up for final disposal at the admission stage. Accordingly we issue
Rule. The learned Government Pleader waives service for the first
respondent. Considering the nature of controversy, notice to the second
and third respondents is dispensed with.
2. The issue which arises for consideration in these three petitions is
as under :“
Whether a litigant who settles a suit before Lok Adalat held under
the Legal Services Authorities Act, 1987 (for short “the said Act of
1987) is entitled to 100% refund of Court Fees paid ?”
3. The factual aspect in all these three petitions are more or less
same. Therefore, we are referring only to the facts in Writ Petition
No.9864 of 2017. The petitioner filed a money suit against the third
respondent in the Court of Civil Judge, Senior Division at Malshiras,
District Solapur. The suit was placed before the Lok Adalat on 9th April,
2016. A compromise was arrived at between the parties before the Lok
Adalat and a written compromise was tendered on record before the
Lok Adalat. The suit was disposed of in terms of the compromise by the
Lok Adalat and an award was made.
4. On 14th July, 2016, an application was made by the petitioner
before the learned Trial Judge for refund of the entire amount of Court
fees of Rs.3 lakhs paid on the suit. The learned Trial Judge passed an
order granting 100% refund in the light of the provisions of Section 89
of the Civil Procedure Code (for short “CPC”) and Section 21 of the
said Act of 1987. Accordingly, a refund was made of the Court Fees of
Rs.3 lakhs. On the basis of an objection raised during the inspection of
the District Court, the learned Trial Judge issued a notice dated 6th
July, 2017 to the petitioner informing the petitioner that though the
petitioner was entitled to refund of only 25% of the Court fees, the
petitioner was granted full refund. Therefore, the petitioner was called
upon to deposit a sum of Rs.2.25 lakhs. The present petition is filed for
challenging the said communication / demand issued by the learned
Trial Judge to the petitioner.
5. The submission of the learned Counsel appearing for the
petitioner is based on Section 21 of the said Act of 1987. He submitted
that provisions of the Court Fees Act, 1870 (for short “the Central Court
Fees Act”) regarding the refund of the Court fees stands incorporated in
subSection
(1) of Section 21 of the said Act of 1987 and as the
provisions of Central Court Fees Act provide for grant of 100% refund
of Court fees in the suits settled before the Lok Adalat, the Trial Court
was justified in granting 100% refund. He placed reliance on the
observations made by a Division Bench of this Court in the case
of Sanjeevkumar Harakchand Kankariya Vs. Union of India &
Ors.1 and in particular in paragraph 14. He submitted that it is
already held by the Division Bench that Section 21 of the Act of 1987 is
a case of legislation by incorporation.
6. The learned Government Pleader relied upon an affidavit of Shri.
Rajendra Dattaram Sawant, Legal AdvisorcumJoint
Secretary, Law and
Judiciary Department, Mantralaya, Mumbai. The submission of the
learned Government Pleader is that so far as the payment and refund
of Court fees in the Civil Courts in Maharashtra is concerned, the
1 Writ Petition No. 4919 of 2014, decided on 1st October, 2014
Maharashtra Court Fees Act, 1959 (for short “the State Court Fees Act”)
is a complete code by itself. He urged that Section 43 of the State
Court Fees Act provides for repayment of Court fees in case of
settlement and, therefore, in the facts of the case, the repayment or
refund of Court fees will be governed by the Notification dated 8th May,
2013 issued in exercise of powers under subSection
(2) of Section 43
of the State Court Fees Act. He pointed out that going by the said
Notification, in the present case, the petitioner is entitled to refund of
Court fees only to the extent of 25%. He also invited our attention to
the decision of the Division Bench of this Court in the case of
Sanjeevkumar S. Kankariya (supra) and submitted that the question
which arises in these petitions never arose before the Division Bench
and, therefore, what is observed in paragraph 14 cannot be a binding
precedent. He also relied upon the Maharashtra Court Fees
Amendment Act, 2017 (For short “the Amendment Act”) and Section
16A incorporated in the State Court Fees Act by the said Amendment
Act. He pointed out that Section 16A provides for 100% refund of the
Court fees, in case the Court refers the parties to the suit to any of the
modes of settlement of disputes referred in Section 89 of CPC. He also
relied upon an extract of 189th Report on “Revision of Court Fees
Structure” by the Law Commission of India. He, therefore, submitted
that the learned Trial Judge was justified in calling upon the petitioner
to deposit a sum of Rs.2.25 lakhs.
7. We have given careful consideration to the submissions. The
impugned demand made by the learned Trial Judge is not based on a
judicial order and in fact an administrative order was passed calling
upon the petitioner to pay a sum of Rs. 2,25,000/.
That is how we
are entertaining this writ Petition under Article 226 of the Constitution
of India. Section 19 of the said Act of 1987 empowers the State Legal
Services Authorities or District Legal Service Authorities to organize Lok
Adalats as provided therein. Section 20 lays down the cases which can
be placed before the Lok Adalat. Section 21 is material which reads
thus :“
21. Award of Lok Adalat.
(1) Every award of the Lok Adalat shall be deemed to be a decree of
a civil court or, as the case may be, an order of any other court and
where a compromise or settlement has been arrived at, by a Lok
Adalat in a case referred to it under subsection
(1) of section 20,
the courtfree
paid in such case shall be refunded in the
manner provided under the Court Fees Act, 1870.
(2) Every award made by a Lok Adalat shall be final and binding
on all the parties to the dispute, and no appeal shall lie to any court
against the award.”
(emphasis added)
8. Section 16 of the Central Court Fees Act reads thus :
“16. Refund of fee. – Where the Court refers the parties to the suit
to any one of the mode of settlement of dispute referred to in section
89 of the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff
shall be entitled to a certificate from the Court authorising
him to receive back from the collector, the full amount of the
fee paid in respect of such plaint.”
(emphasis added)
We must note that Section 16 is brought on the statute book by
the Act No.46 of 1999 by which there were major amendments carried
out to CPC.
9. On plain reading of Section 21, the provisions of the Central
Court Fees Act relating to refund of Court fees stand incorporated in
Section 21. The question is whether subSection
(1) of Section 21 can
be said to be an instance of a legislation by incorporation. In that
behalf, we may make a useful reference to the two decisions of the
Apex Court. The first one is in the case of Mahindra and Mahindra
Vs. Union of India2 and the second is in the case of C.N.Paramasivam
Vs. Sunrise Plaza3. In paragraph 8 of the decision in the case of
Mahindra and Mahindra (supra), the Apex Court held thus :“
8. The first question that arises for consideration in the
preliminary objection of the respondents is as to what is the
true scope and ambit of an appeal under Section 55. That section
provides inter alia that any person aggrieved by an order made by
2 (1979) 2 SCC 529
3 (2013) 9 SCC 460
the Commission under Section 13 may prefer an appeal to this
Court on "one or more of the grounds specified in section 100 of the
Code of Civil Procedure, 1908". Now at the date when Section 55
was enacted, namely, 27th December, 1969, being the date of
coming into force of the Act, section 100 of the Code of Civil
Procedure specified three grounds on which a second appeal could
be brought to the High Court and one of these grounds was that the
decision appealed against was contrary to law. It was sufficient
under Section 100 as it stood then that there should be a question
of law in order to attract the jurisdiction of the High Court in
second appeal and, therefore, if the reference in Section 55 were to
the grounds set out in the then existing Section 100 , there can be
no doubt that an appeal would lie to this Court under Section 55 on
a question of law. But subsequent to the enactment of Section 55
section 100 of the Code of Civil Procedure was substituted by a new
section by section 37 of the Code of Civil Procedure (Amendment)
Act, 1976 with effect from 1st February, 1977 and the new Section
100 provided that a second appeal shall lie to the High Court only if
the High Court is satisfied that the case involves a substantial
question of law. The three grounds on which a second appeal could
lie under the former Section 100 were abrogated and in their place
only one ground was substituted which was a highly stringent
ground, namely, that there should be a substantial question of law.
This was the new Section 100 which was in force on the date when
the present appeal was preferred by the appellant and the argument
of the respondents was that the maintainability of the appeal was,
therefore, required to be judged by reference to the ground specified
in the new Section 100 and the appeal could be entertained only if
there was a substantial question of law. The respondents leaned
heavily on Section 8(1) of the General Clauses Act, 1897 which
provides:
"8(1) Where this Act, or any Central Act or Regulation
made after the commencement of this Act, repeals and
reenacts,
with or without modification, any provision
of a former enactment, then references in any other
enactment or in any instrument to the provision so
repealed shall, unless a different intention appears, be
construed as references to the provision so reenacted."
and contended that the substitution of the new Section 100
amounted to repeal and reenactment
of the former Section 100
and, therefore, on an application of the rule of interpretation
enacted in Section 8(1), the reference in Section 55 to Section 100
must be construed as reference to the new Section 100 and the
appeal could be maintained only on the ground specified in the new
Section 100, that is, on a substantial question of law. We do not
think this contention is well founded. It ignores the distinction
between a mere reference to or citation of one statute in another
and an incorporation which in effect means bodily lefting a
provision of one enactment and making it a part of another. Where
there is mere reference to or citation of one enactment in another
without incorporation. Section 8(1) applies and the repeal and reenactment
of the provision referred to or cited has the effect set out
in that section and the reference to the provision repealed is
required to be construed as reference to the provision as reenacted.
Such was the case in the Collector of Customs V. Nathella
Sampathu Chetty & Anr. (AIR 1962 SC 316 : (1962) 3 SCR 786]
and New Central Jute Mills Co. Ltd. v. The Assistant Collector of
Central Excise [(1970)2 SCC 820 : AIR 1971 SC 454 : (1971) 2
SCR 92]. But where a provision of one statute is incorporated in
another, the repeal or amendment of the former does not affect the
latter. The effect of incorporation is as if the provision were
written out in the incorporating statute and were a part of it.
Legislation by incorporation is a common legislative device
employed by the legislature, where the legislature for
convenience of drafting incorporates provisions from an
existing statute by reference to that statute instead of setting
out for itself at length the provisions which it desires to adopt.
Once the incorporation is made, the provision incorporated
becomes an integral part of the statute in which it is
transposed and thereafter there is no need to refer to the
statute from which the incorporation is made and any
subsequent amendment made in it has no effect on the
incorporating statute. Lord Esher, M.R., while dealing with
legislation in incorporation in In re. Wood's Estate [(1886) 31
Ch.D. 607] pointed out at p. 615:
"If a subsequent Act brings into itself by reference
some of the clauses of a former Act, the legal effect of
that, as has often been held, is to write those sections
into the new Act just as if they had been actually written
in it with the pen, or printed in it, and, the moment you
have those clauses in the later Act, you have no occasion
to refer to the former Act at all."
(emphasis added)
10. The relevant portion of celebrated work of Justice G.P. Singh on
Principles of Statutory Interpretation has been quoted in paragraph 17
of the decision in the case of C.N. Paramasivam (supra). The paragraph
17 reads thus :“
17. Legislation by incorporation is a device to which legislatures
often take resort for the sake of convenience. The phenomenon is
widely prevalent and has been the subjectmatter
of judicial
pronouncements by courts in this country as much as courts
abroad. Justice G.P. Singh in his celebrated work on Principles of
Statutory Interpretation has explained the concept in the following
words :
“Incorporation of an earlier Act into a later Act is a
legislative device adopted for the sake of convenience in order to
avoid verbatim reproduction of the provisions of the earlier Act into
the later. When an earlier Act or certain of its provisions are
incorporated by reference into a later Act, the provisions so
incorporated become part and parcel of the later Act as if they
had been 'bodily transposed into it'. The effect of incorporation
is admirably stated by Lord Esher, M.R.:
'...If a subsequent Act brings into itself by reference some of
the clauses of a former Act, the legal effect of that, as has often been
held, is to write those sections into the new Act just as if they had
been actually written in it with the pen, or printed in it …..'
[Wood's Estate, In re, ex p Works and Buildings Commissioners,
(1886) 31 Ch D 607 (CA) at p. 615]
Even though only particular sections of an earlier Act are
incorporated into later, in construing the incorporated sections it
may be at times necessary and permissible to refer to other parts of
the earlier statute which are not incorporated. As was stated by
Lord Blackburn:
'When a single section of an Act of Parliament is introduced
into another Act, I think it must be read in the sense which it bore
in the original Act from which it was taken, and that consequently
it is perfectly legitimate to refer to all the rest of that Act in order to
ascertain what the section meant, though those other sections are
not incorporated in the new Act.' [Portsmouth Corpn. V. Smith,
(1885) 10 AC 364 (HL) at p.371]”.
(emphasis added)
11. In the light of the aforesaid two decisions, subSection
(1) of
Section 21 of the Act will have to be interpreted. On plain reading of
subSection
(1) of Section 21, the provisions regarding the refund of
Court fees in relation to the cases settled before the Lok Adalat under
the Central Court Fees Act, have been specifically incorporated in subSection
(1) of Section 21. The effect of such incorporation is that the
provisions of Section 16 of the Central Court Fees Act stand
incorporated in subSection
(1) of Section 21 and Section 16 has now
become a part of subSection
(1) of Section 21. As pointed out earlier,
Section 16 is applicable when a suit referred by the Court to one of the
three modes of settlement under Section 89 of the CPC, which includes
Lok Adalat, is settled. Thus, it is crystal clear that once there is a
settlement of a suit before the Lok Adalat, by virtue of incorporation of
the provisions of Section 16 of the Central Court Fees Act into subSection
(1) of Section 21, the plaintiff in a suit settled before the Lok
Adalat by an Award of a Lok Adalat, will be entitled to 100% refund of
Court fees.
12. At this stage, we must also make a reference to Section 43 of the
State Court Fees Act, which reads thus :“
43. Repayment of fee in certain circumstances :(
1) When any
suit in a Court [Maharashtra or any proceeding instituted by
presenting a petition to a court under the Hindu Marriage Act,
1955,] is settled by agreement of parties before any evidence is
recorded, or any appeal or crossobjection
is settled by
agreement of parties before it is called on for effective hearing by
the Court, half the amount of the fee paid by the plaintiff,
[petitioner appellant, or respondent on the plaint, [petition]
appeal or crossobjection,
as the case may be, shall be repaid to
him by the Court:
Provided that, no such fee shall be repaid if the amount of fee
paid does not exceed [twenty five rupees] or the claim for
repayment is not made within one year from the date on which
the Suit, [proceeding,] appeal or crossobjection
was settled by
agreement.
(2) The State Government may, from time to time, by order,
provide for repayment to the plaintiffs, [petitioners] [complaints
under section 138 of the Negotiable Instruments Act, 1881,]
appellants or respondents of any part of the fee paid by them on
plaints, [petitions] [complaints under section 138 of the
Negotiable Instruments Act, 1881,] appeals or crossobjections,
in suits, [complaints under section 138 of the Negotiable
Instruments Act, 1881,] [proceedings] or appeals disposed of
under such circumstances and subject to such conditions as may
be specified in the order.”
13. We must note that per se Section 43 does not deal with a suit or
an appeal which is settled before the Lok Adalat and which culminates
into an Award made by the Lok Adalat. Reliance was sought to be
placed by the learned Government Pleader on Section 16A as amended
by Maharashtra Act No.X of 2018. The said provision is applicable
when the Court refers the parties to the suit to one of the three
mechanisms under Section 89 of the CPC and the suit is disposed of by
the Court. On conjoint reading of the provisions of Sections 19 and 20
of the said Act of 1987, a Lok Adalat organized under Section 19 is
empowered to dispose of a case referred to it, when parties arrive at
settlement. In such a case, an Award is made by the Lok Adalat in
terms of the settlement. Section 20 contemplates that after a case is
referred to the Lok Adalat by a regular Court, if the parties arrive at
settlement, the case need not go back to regular Court for passing an
order in terms of the settlement, but the Lok Adalat is empowered to
pass an Award in terms of the settlement.
14. It will be also necessary to make a reference to the Statement of
Objects and Reasons of the said Act of 1987. Clauses 1 to 3 read thus :“.
Article 39A
of the Constitution provides that the State shall
secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free
legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
2. With the object of providing free legal aid, Government had
by a Resolution, dated the 26th September, 1980, appointed the
“Committee for Implementing Legal Aid Schemes” (CILAS) under
the chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to
monitor, and implement legal aid programmes on a uniform basis
in all the States and Union territories. CILAS evolved a model
scheme for legal aid programme applicable throughout the country
by which several legal aid and advice Boards have been set up in the
States and Union territories. CILAS is funded wholly by grants
from the Central Government. The Government is accordingly
concerned with the programme of legal aid as it is the
implementation of a constitutional mandate. But on a review of
the working of the CILAS, certain deficiencies have come to the fore.
It is, therefore, felt that it will be desirable to constitute statutory
legal service authorities at the National, State and District levels so
as to provide for the effective monitoring of legal aid programmes.
The Bill provides for the composition of such authorities and for the
funding of these authorities by means of grants from Central
Government and the State Governments. Power has also been
given to the National Committee and the State Committees to
supervise the effective implementation of legal aid scheme.
3. For some time, now Lok Adalats are being constituted at
various places in the country for the disposal, in a summary way
and through the process of arbitration and settlement between the
parties, of a large number of cases expeditiously and with lesser
costs. The institution of Lok Adalats is at present functioning as a
voluntary and conciliatory agency without any statutory backing
for its decisions. It has proved to be very popular in providing for a
speedier system of administration of justice. In view of its growing
popularity, there has been a demand for providing a statutory
backing to this institution and the awards given by Lok Adalats. It
is felt that such a statutory support would not only reduce the
burden of arrears of work in regular Courts, but would also take
justice to the doorsteps
of the poor and the needy and make justice
quicker and less expensive.”
15. Even the preamble of the said Act of 1987 is relevant which reads
thus :“
An Act to constitute legal services authorities to provide free and
competent legal services to the weaker sections of the society to
ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities, and to organise
Lok Adalats to secure that the operation of the legal system
promotes justice on a basis of equal opportunity.”
16. It is crystal clear from the preamble that the Act has been enacted
inter alia with the object of providing for organization of Lok Adalats to
secure that the operation of the legal system promotes justice on the
basis of equal opportunity. On conjoint reading of objects and reasons
as well as the preamble, it is apparent that the said Act of 1987 has
been enacted for giving effect to the directive principles laid down in
Article 39A of the Constitution of India. Perhaps, keeping in mind the
objects of the said Act of 1987 that Section 16 of the Central Court Fees
Act was incorporated in Section 21. The object of incorporating
Section 16 of the Central Court Fees Act in Section 21 of the said Act of
1987 is to encourage the parties to settle the suits before the Lok
Adalat.
17. Now, we may refer to the decision of the Division Bench of this
Court in the case of Sanjeevkumar H. Kankariya (supra). The case
before the Division Bench did not arise out of a settlement in the form
of an Award by the Lok Adalat. That was a case where a suit was
referred to a mediator before whom a settlement was arrived at. The
terms of settlement were presented to the regular Court which passed a
decree in terms of the settlement. Thus, the Division Bench was not
dealing with a case to which subSection
(1) of Section 21 of the said
Act of 1987 was applicable. While dealing with the issue, incidentally
the Division Bench had an occasion to interpret Section 21 of the said
Act of 1987, paragraph 14 reads thus :“
14. In the instant matter, the award has not been passed by the
Lok Adalat. Section 21 of the Legal Services Authorities Act, 1987
stipulates that every award of the Lok Adalat shall be deemed to be
a decree of Civil Court or, as the case may be an order of any other
Court and where a compromise or settlement has been arrived at,
by a Lok Adalat in a case referred to it under subsection
(1) of
section 20, the Courtfee
paid in such case shall be refunded in the
manner provided under the Court Fees Act, 1870. On consideration
of provisions of Section 21 of the Legal Services Authorities Act,
1987, it is evident that an award of the Lok Adalat shall be deemed
to be a decree of Civil Court and the matters wherein award has
been passed by the Lok Adalat are governed by the provisions of
Legal Services Authorities Act and as such, in such of those matters,
refund of court fees shall be in accordance with the provisions of
Court Fees Act, 1870. It is to be noted that in Section 21 of the
Legal Services Authorities Act, 1987, provisions contained in
Court Fees Act, 1870, relating to refund of court fees, are
incorporated. Thus, it is a case of legislation by incorporation
and by virtue of such incorporation, provisions of Court Fees
Act, 1870 relating to refund of court fees, are made applicable
in respect of award passed by the Lok Adalat. The analogy
applicable to the awards of Lok Adalat cannot be applied to the
decrees passed by the Courts on the basis of settlement, even though
same is reached in furtherance of a mediation taken up under
Section 89 of the Code of Civil Procedure. Once it is held that
provisions of Maharashtra Court Fees Act, 1959, are attracted,, it
would be permissible for the State to issue notification prescribing
refund of court fees in exercise of powers conferred under Section
43(2) of the Act. The notification dated 08.05.2013, thus, cannot
be said to be ultra vires the powers exercisable by the State under
Maharashtra Court Fees Act, 1959.”
(emphasis added)
The opinion expressed by the Division Bench supports the view
which we have taken.
18. For the reasons which we have recorded, we are of the view that
subSection
(1) of Section 21 is a case of legislation by incorporation.
Therefore, provisions of Section 16 of the Central Court Fees Act will
have to be read in into subSection
(1) of Section 21 of the 1987 Act.
To conclude, Section 16 of the Central Court Fees Act stands
incorporated in subSection
(1) of Section 21 of the said Act of 1987
and, therefore, when a civil suit is referred to a Lok Adalat which ends
with an Award of the Lok Adalat, the plaintiff is entitled to 100% refund
of Court fees paid in the said suit. Thus, a defendant who files a
counter claim in the suit is entitled to 100% refund of the Court fees
paid on a counter claim which is settled before a Lok Adalat.
Therefore, in the three cases in hand, the learned Trial Judge was not
justified in calling upon the petitioner to deposit 75% of the amount of
Court fees out of the refund amount paid to the petitioner. Hence, we
dispose of the petitions by passing the following order :ORDER
(i) We hold and declare that petitioners being plaintiffs in the
suits settled before the Lok Adalat held under the Legal Service
Authority Act, 1987 are entitled to 100% refund of Court fees.
Therefore, notwithstanding objections raised during inspection or
audit, the petitioners are not liable to refund any part of the
amount of Court fees refund which is received by them;
(ii) We direct the Registrar (JudicialI)
to circulate soft copies
of this judgment to the learned Principal District Judges and the
Principal Judges of the other Courts such as Family Courts, Motor
Accident Claims Tribunal, who in turn shall forward the soft
copies of this judgment to the other Judicial Officers. A soft copy
of this judgment shall be forwarded to the Registrar
(InspectionI)
of this Court;
(iii) Rule is made absolute in the above terms.
(M.S. SANKLECHA, J.) (A. S. OKA, J.)
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