Madhaorao & Ors Vs. State of
Maharashtra [1971] INSC 37 (29 January 1971)
GROVER, A.N.
GROVER, A.N.
HEGDE, K.S.
CITATION: 1972 AIR 45 1971 SCR (1) 604 1971
SCC (1) 542
ACT:
Bombay Court Fees Act, 1959-Section 6(i) (v)
and Cls. (a), (b) and (c)-Basis of calculation of court fee where subject
matter is land.
HEADNOTE:
In a suit for possession of land court fee
was held to be payable, under s. 6(1) (v) of the Bombay Court Fees Act, 1959,
on the value of the land. On appeal,
HELD : Under section 6(i)(v) in a suit for
possession of land the court fee has to be calculated according to what has
been provided in subclasses (a) (b) and (c) with regard to different categories
of land. It may be that in cl. (v) the land which has not been assessed to land
revenue is not covered by clause (a), (b) and (c) but then the court fee will
have to be calculated under some other provision of the Act but not on the
basis of the value of the land. [606 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1728 of 1967.
Appeal by special leave from the judgment and
order dated February 23, 1967 of the Bombay High Court, Nagpur Bench in Civil
Revision No. 32 of 1965.
W. S. Barlingay and A. G. Ratnaparkhi, for
the appellants.
M. C. Bhandare and S. P. Nayar, for the
respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Bombay
High Court (Nagpur Bench). The appellants had filed a suit for claiming
proprietary rights in a property which was known as "Navegaon tank" and
which consisted of several khasras with a total acreage of 3104 odd. These
villages were Malguzari villages. By virtue of the provisions of the Madhya
Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands),
Act, 1950 the malguzari of this tank were deprived of their rights and the
Government took over possession. The compensation was paid by the Government
after holding enquiry provided by the Act. The appellants, however, claimed a
declaration that they still continued to be owners as before and wanted a
permanent injunction restraining the Government from interfering with their
rights.
Alternatively it was prayed that if the
Government was found to be in possession then a decree for possession be
granted in their favour.
605 The Court Fee which was paid by the
appellants was calculated on the following basis. It was alleged that
compensation of Rs. 1126/only had been paid, to the proprietors and therefore
the tank had to be valued on the basis of that figure for the purpose of court
fee and jurisdiction. In addition owing to the injunction claimed an additional
court fee of Rs. 501 was paid. On behalf of the State an objection was raised
in the trial court that the value of the tank would not be less than Rs.
10,00,000/and court fee on that amount should have been paid. The trial court
came to the conclusion that the suit was for possession of land on the evidence
which was produced it was held that the value of the land was Rs. 25,00,000/-.
The appellants were directed to pay court fee on that amount and make
appropriate amendments in the plaint.
The appellants approached the High Court on
the provisional side and challenged the decision of the trial court on the
question of court fee. The High Court referred to s. 6(i) (v) of the Bombay
Court Fees Act, 1959, which was in force at the material time. This provision
may be reproduced "In suits for the possession of land, houses and
gardens-according to the value of the subject matter; and such value, shall be
deemed to be, where the subject matter is a house or garden-according to the
market value of the house or garden and where the subject matter is land."
(a)..........
(b) (c)..........
According to the High Court the court fee was
payable according to the value of the subject matter of the suit.
So far as the houses and gardens were
concerned it was the market value on which the court fee had to be paid. As
regards the land subclasses (a), (b) and (c) contained a qualification with
regard to those lands which were liable to pay land revenue to the State. Since
tank was land covered under water it had to be valued as on the date of the
suit without taking into consideration the improvements which might have been
made. The value was of the subject matter and it would be that value which
would be relevant for the purpose of court fee and jurisdiction. The matter was
remanded to the trial court for further enquiry in the matter.
It appears that according to the view of the
High Court the court fee is payable under s. 6 (i) (v) even with regard to land
606 on its value which according to the counsel for the State would be the
market value. In our judgment S. 6 (i) (v) does not admit of any such method of
calculating the court fee where the subject matter is land. There is no doubt
that where the subject matter is a house or a garden, in a suit for possession
the court fee has to be paid according to the market value of the house or
garden but where the subject matter is land the court fee has to be calculated
according to what has been provided in the sub clauses (a), (b) and (c) with
regard to different categories of land. It may be that in clause (v) the land
which has not been assessed to land revenue is not covered by, clauses (a), (b)
and (c) but then the court fee will have to be calculated under some ,other
provision of the Act but not on the basis of the value of the land.
If there is any lacuna in the Bombay Act that
will not justify the court in straining the language of clause (v) and reading
it in such a way that if the land does not fall within sub-clauses ,(a), (b)
and (c) mentioned therein it must be valued in the same way as a house or a
garden and court fee should be paid on that value. If, however, it is found
that the land underneath the tank is assessed to land revenue then there is no
difficulty and the court fee has to be calculated in accordance with the
provisions of s. 6(i) (v). But if the court fee cannot be determined under that
provision it will be for the trial court to decide, under which provision court
fee is payable and the appellant shall be required to pay that amount of court
fee which is payable under the appropriate provision.
The appeal is consequently allowed and the
order of the High Court is set aside. The case is remanded to the trial court
for disposal in accordance with law. Costs shall abide the event.
K.B.N. Appeal allowed.
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