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 sub
section (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.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4919 OF 2014
Sanjeevkumar Harakchand Vs Union of India,
CORAM : R.M.BORDE &
V.K.JADHAV, JJ.
DATE : 01st October, 2014
Citation;2015(2) MHLJ157 Bom,2014(6)ABR827, 2015(1)BomCR49
Heard. Rule. Rule made returnable forthwith and
2
heard finally by consent of learned Counsel for respective parties.
The petitioner is seeking a writ, order or direction to
the State of Maharashtra for refund of entire amount of court fees
to such of the litigants including the petitioner who have presented
proceedings in the Civil Court and those proceedings have been
disposed of in adaptation of any of the modes prescribed under
Section 89 of the Code of Civil Procedure, 1908. The petitioner also
seeks to quash notification dated 08.05.2013, issued by Law &
Judiciary Department, Government of Maharashtra, bearing
No.HCA.2010/C.R.87/D19, issued under Section 43(2) of the
Maharashtra Court Fees Act, 1959, on the ground that the
notification is contrary to provisions of Section 16 of the Court
Fees Act, 1870 read with Sections 20 and 21 of the Legal Services
Authority Act, 1987. The petitioner also seeks a declaration that
Respondent No.2 has no authority in law to issue a notification
contrary to the provisions of Section 16 of the Court Fees Act, 1870
and prays that all such notifications and rules, run contrary to the
aforesaid provisions, be quashed and set aside.
3
The petitioner entered into an agreement to sell
immovable property situate at Aurangabad with Respondents No.3
& 4. Since the agreement to sell was not specifically performed,
petitioner presented Special Civil Suit No.274 of 2013 in the Court
of Civil Judge, Senior Division, Aurangabad, praying for grant of
relief of specific performance of contract. Respondents No.3 & 4
resisted the claim by filing written statement. Learned 5 th Joint
Civil Judge, Senior Division, Aurangabad, before whom suit was
pending, considering nature of the suit, directed the parties to
adopt a mode for alternate dispute resolution prescribed under
Section 89 of the Code of Civil Procedure i.e. mediation. On
reference to mediator, the parties, after due deliberations and with
the aid of the mediator, resolved their dispute amicably and terms
of settlement were presented to the Court. The mediator also
submitted his report informing that the dispute is amicably settled
between the parties. On 07.04.2014, terms of compromise were
presented to the Court and ultimately the trial Court was pleased
to dispose of the suit and passed decree in terms of the
compromise. The petitioner requested for refund of total court fees,
however, learned 5th Joint Civil Judge, Senior Division,
Aurangabad, on consideration of notification issued by the
Government, referred to above, was pleased to permit refund of
only 50% court fees.
4
The petitioner contends that the trial Court has
committed serious error in permitting refund of only 50% of the
court fees. Reliance is placed on provisions of Section 16 of the
Court Fees Act, 1870 whereunder, according to the petitioner, he is
entitled to claim refund of total court fees deposited by him, since
the matter has been disposed of in view of adaptation of mode
prescribed under Section 89 of the Code of Civil Procedure, 1908.
It is contended that Section 21 of the Legal Services Authorities
Act, 1987, provides that where a compromise or settlement has
been arrived at, before a Lok Adalat in a case referred to it under
subsection (1) of Section 20 of the said Act, the court fee paid in
such case shall be refunded in the manner provided under the
Court Fees Act, 1870. It is provided that independently also, in
view of provisions of Section 16 of the Court Fees Act, 1870, which
shall have precedence over the State enactment, total court fees
In order to controvert the contentions raised by
5
paid by the litigant shall have to be refunded.
petitioner, an affidavitinreply has been presented on behalf of
RespondentState, by SolicitorcumDeputy Secretary to
Government, Law and Judiciary Department, Aurangabad. It is
contended that in exercise of the powers conferred by subsection
(2) of Section 43 of the Maharashtra Court Fees Act, 1959, the
Government of Maharashtra, by its Order No.HCA.2010/C.R.87/D
19, dated 08.05.2013, has directed to refund such part of the
Court fees paid by the parties, as specified in column (2) of the
Schedule thereto. It is contended that 100% of the Court fee paid
by the plaintiff, appellant or petitioner is refundable in the
proceedings referred to in Articles 20, 21, 22, 23, 38A, 38B and
38C of the Schedule II of the Act. It is contended that in all other
matters, not covered under clause 1 of the circular dated
08.05.2013, refund of only 50% court fees is permissible. It is
further contended by the State that Section 66 of the Karnataka
Court Fees and Suits Valuation Act, 1958, also provides for refund
of 50% of the Court fees whenever by agreement of parties, any
suit is dismissed as settled out of Court or ended in a compromise
decree before any evidence has been recorded or any appeal is
disposed of before commencement of hearing. Section 69 of the
Tamil Nadu Court Fees and Suits Valuation Act, 1955, also
provides for similar provision in respect of refund of 50% of the
Court fees. It is, thus, contended that the directions issued under
Order dated 08.05.2013, in observance of subsection (2) of Section
43 of the Maharashtra Court Fees Act, 1959, is legal and proper
and claim raised by the petitioner, in the instant petition, does not
The petitioner contends that when the parties are
6
deserve consideration.
directed to adopt any of the mode for resolution of dispute provided
under Section 89 of the Code of Civil Procedure, it is inconsistent
with the object incorporated in Section 89 of the Code not to direct
refund of court fees. Section 89 of the Code of Civil Procedure
provides for settlement of dispute outside the Court. The
provisions are incorporated in view of recommendations made by
the Law Commission of India and Malimath Committee. It was
suggested by Law Commission that the Court may require
attendance of any party to the suit or proceeding in person with a
view to arrive at an amicable settlement. The Malinath Committee
recommended to refer the dispute after issues are framed, for
settlement either by way of arbitration, conciliation, mediation,
judicial settlement through Lok Adalat. It is only when the parties
fail to get their disputes settled through any of the alternate
disputes resolution method, the suit shall proceed further. The
provisions of Section 89 of the Act are held to be constitutional and
valid by the Supreme Court in the matter of Salem Advocates Bar
Association, Tamil Nadu Vs. Union of India, reported in AIR
2003 SC 189. The Apex Court, in the matter of Salem Advocates
Bar Association (supra), has suggested that in the event of
compulsory reference to conciliation/mediation, if expenditure on
conciliation/mediation is borne by the Government, it may
encourage the parties to come forward for conciliation/mediation.
The Court further observed that on the other hand, if the parties
feel that they have to incur extra expenditure for resorting to such
ADR. modes, it is likely to act as a deterrent for adopting these
methods. The Central Government is directed to examine it and if
agreed, it was requested to make specific financial allocation for
judiciary for including the expenses involved for
mediation/conciliation under Section 89 of the Code of Civil
89
Procedure. Section 89 of the Code of Civil Procedure reads thus:
Settlement of disputes outside the Court
(1)
Where it appears to the Court that there exist
elements of a settlement which may be acceptable to
the parties, the Court shall formulate the terms of
settlement and give them to the parties for their
observations and after receiving the observations of
the parties, the Court may reformulate the terms of
a possible settlement and refer the same for
(a)
(b)
(c)
(d) arbitration;
conciliation;
judicial settlement including settlement
through Lok Adalat; or
mediation.
(2) Where a dispute has been referred
(a)
for arbitration or conciliation, the provisions of
the Arbitration and Conciliation Act, 1996 (26 of
1996) shall apply as if the proceedings for arbitration
or conciliation were referred for settlement under the
provisions of that Act;
(b)
to Lok Adalat, the Court shall refer the same
to the Lok Adalat in accordance with the provisions
of subsection (1) of section 20 of the Legal Services
Authority Act, 1987 (39 of 1987) and all other
provisions of that Act shall apply in respect of the
dispute so referred to the Lok Adalat;
ig
(c)
for judicial settlement, the Court shall refer
the same to a suitable institution or person and
such institution or person shall be deemed to be a
Lok Adalat and all the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) shall apply
as if the dispute were referred to a Lok Adalat under
the provisions of that Act;
(d)
for mediation, the Court shall effect a
compromise between the parties and shall follow
such procedure as may be prescribed.
7
It must be noted that after incorporation of Section 89
by virtue of Amendment Act of 1999, the provisions of Section 16 of
the Court Fees Act, 1870 came to be amended, which 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, 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.
The amendment has been brought into force in the
year 1999.
8
The procedure to be followed for conduct of mediation
and for Lok Adalats is provided for in the Legal Services Authorities
Act, 1987. Section 19 of the Act contemplates holding of Lok
Adalats for amicable settlement of the dispute. Section 20 provides
for cognizance of the cases by Lok Adalats. Whereas, Section 21
fees. Section 21 (1) reads thus:
provides for award of Lok Adalat and also prescribe refund of court
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 courtfee
paid in such case shall be refunded in the manner
provided under the Court Fees Act, 1870.
The petitioner submits that although suit, in the
instant matter, has not been settled before Lok Adalat, however,
settlement has been arrived at in mediation proceedings in
pursuance to a reference made by the Court compulsorily in view
of Section 89 of the Code of Civil Procedure. The petitioner, thus,
submits that in view of provisions of Section 16 of the Court Fees
Act, 1870, he is entitled to claim refund of court fee and operation
of Section 16 cannot be controlled or nothing contrary to what has
been provided under Section 16 of the Act of 1870 can be
prescribed under the Maharashtra Court Fees Act, 1959 and if
such prescription is made, same shall be deemed to be contrary to
the Constitutional mandate under Article 254 of the Constitution
of India. It is contended that amendment prescribing refund of
court fees under Section 16 of the Court Fees Act, 1870, is
incorporated in 1999, which is much later in point of time of
prescription of Section 43 of the Maharashtra Court Fees Act,
1959. It is, thus, contended that provisions of law made by the
State Legislature, which is repugnant to the provisions of law made
by the Parliament, shall give way to the law made by the
The contention raised by the petitioner, though
10
Parliament.
appears to be attractive, however, same cannot be accepted for the
reason that Court Fees Act, 1870, is a preConstitutional
enactment, and not enforceable in the State of Maharashtra after
enforcement of Bombay Court Fees Act, 1959. On consideration of
List I incorporated in Seventh Schedule under Article 246 i.e. the
Union list, it is noticed that same provides for the subjects matter
ig
in respect of which Parliament has exclusive power to make laws.
The Parliament has exclusive powers to make law relating to
subjects enumerated in List I of Seventh Schedule i.e. Union list.
Entry No.77 relates to Constitution, Organization, Jurisdiction and
powers of the Supreme Court (including contempt of such Court),
and the fees taken therein; persons entitled to practise before the
Supreme Court. Entry 79 relates to Extension of the jurisdiction
of a High Court to, and exclusion of the jurisdiction of a High
Court from, any Union territory. Entry 95 is in respect of
Jurisdiction and powers of all Courts, except the Supreme court,
with respect to any of the matters in this List; admiralty
jurisdiction. Whereas, Entry 96 relates to Fees in respect of any of
the matters in the said List, but not including fees taken in any
Court. List II of Seventh Schedule is the State List and it is the
State Legislature which has powers to make laws for such State or
any part thereof in respect to any of the matters enumerated in
List II in the Seventh Schedule. The State List incorporates Entry
65 as regards Jurisdiction and powers of all Courts, except the
Supreme Court, with respect to any of the matters in the said List.
Entry 66 relates to Fees in respect of any of the matters in the said
List, but not including fees taken in any Court. List III of the
Seventh Schedule is Concurrent List in respect of which both the
Parliament as well as State Legislature shall have jurisdiction and
powers to make laws; and relevant Entry is at Sr.No.47 which
prescribes Fees in respect of any of the matters in the said List,
but not including fees taken in any Court.
11
Thus, so far as State of Maharashtra is concerned, the
subject relating to prescription of fees in the Courts, which is a
ig
part of State Judiciary and referrable to the matters included in
List II of Seventh Schedule, is exercisable by the State Legislature.
The State of Maharashtra has enacted law relating to levy of court
fees, namely Maharashtra Court Fees Act, being Act No.XXXVI of
1959. In view of the said enactment, Court Fees Act, 1870 stands
repealed so far as State of Maharashtra is concerned. The matters
arising in the Courts in State of Maharashtra shall have to be
dealt with in accordance with Maharashtra Court Fees Act, 1959.
The Indian Court Fees Act, 1870 is no longer applicable to the
judgment of this Court in the matter of Pushpabai Shankerlal
Sura and others Vs. The Official Liquidator, Sholapur Oil Mills
Ltd., reported in AIR 1970 Bombay 271. The Division Bench has
observed in paragraph 3 of the judgment as below:
State of Maharashtra. We are supported by the Division Bench
“3
As we have recently observed in a similar case
L.P.A. No.44 of 1968, dated 15.10.1968 (Bombay), the
said Act has been recast in 1959 and the Indian
Court Fees Act, 1870, is no longer applicable to this
State.”
12
In view of above, the contention raised by the petitioner
in respect of applicability of provisions of Section 16 of the Court
Fees Act, 1870 and primacy of said provisions, does not deserve
13
consideration.
Learned Counsel appearing for the petitioner has
placed reliance on the judgment delivered by Kerala High Court in
the matter of Vasudevan V.A. Vs. State of Kerala and others,
reported in AIR 2004 Kerala 43, wherein the question which arose
for consideration was, as to whether petitioner therein is entitled
for refund of whole court fees paid in the suit which was ultimately
referred to Lok Adalat and settled between the parties. Learned
Single Judge of Kerala High Court, on consideration of provisions
of Section 21 of the Legal Services Authorities Act, 1987, recorded a
conclusion that since an award has been passed by the Lok
Adalat, which has a force of decree, the matter would be governed
by the provisions of Legal Services Authorities Act and petitioner
would be entitled to refund of court fees.
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 sub
section (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.
15
In view of the discussion as above, writ petition does
not deserve consideration and deserves to be dismissed and same
is accordingly dismissed.
16
While disposing of the writ petition, we deem it
appropriate to recommend the State Government to issue
necessary notification or to bring out necessary amendment
incorporating provision in respect of refund of court fees to the
extent of 100% in respect of the matters which are disposed of by
the Courts on adaptation of any of the modes prescribed under
Section 89 of the Code of Civil Procedure, 1908. Such a step would
be in consonance with the directives issued by the Supreme Court
in Salem Advocates Bar Association Vs. Union of India (supra),
as well as it would bring parity with the provisions of Section 21 of
the Legal Services Authorities Act and Section 16 of the Court Fees
Act, 1870. Thus, in order to bring uniformity in the matter of
refund of court fees and to eliminate discrepancies so far as
matters disposed of in view of the award passed by Lok Adalat;
and such of those matters which are disposed of in terms of the
settlement arrived at on the basis of observance of any of the
modes prescribed under Section 89 of the Code of Civil Procedure,
a direction needs to be issued by the State of Maharashtra to take
effective steps. Such a positive move will also give boost to the
movement of Alternate Disputes Resolution, which, in fact, curtails
precious time of the Court as well as avoids unnecessary and
prolonged indulgence in litigation before the Court. We hope and
trust that RespondentState would consider this suggestion
earnestly and take measures expeditiously.
17
Rule stands discharged. There shall be no order as to
costs.
Copy of this judgment be forwarded to the Principal
Secretary, Law and Judiciary Department, Government of
Maharashtra, for necessary compliance.
V.K.JADHAV
JUDGE
R.M.BORDE
JUDGE
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