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Petitioner: MRS. MOMTAZ MALLIK VS Respondent: THE TAXING OFFICER (REGISTRAR HIGH COURT), DACCA
P L D 1969 Dacca 803
P L D 1969 Dacca 803
Before M. R. Khan, A. S. Chowdhury and A. H. Khan, JJ
MRS. MOMTAZ MALLIK‑Petitioner
Versus
THE TAXING OFFICER (REGISTRAR HIGH COURT), DACCA----- Respondent
Petition No. 302 of 1965 decided on 29th March 1968. `'
(a) Court Fees Act (VII of 1870), S. 8, Art. 1, Sched. ' J and Art. II, Sched. II read with East Bengal (Emergency) Requisition of Property Act (III of 1948), Ss. S & 7( f )‑Appeal against order relating to compensation‑Computation of court fee‑Section 8, Court Fees Act,' 1870 not by itself a charging section=Cannot be considered in isolation, ignoring other provisions of Act‑--Expression "not otherwise provided for in this Act" in Art. 1,' Sched. I Excludes application of Art. 1, Sched. 1 to cases otherwise provided for in the Act‑Section 8 read with exception to Art. 1, Sched. I and Art. II, Sched. II‑Not an absolute enactment of universal application and does not provide an inflexible rule=Arbitrator's award under East Bengal (Emergency) Requisition of Property Act, 1948‑Neither a decree nor order having force of a decree‑Covered by provisions of Art. 11, Sched, II‑Memorandum of appeal under S. 7(f), East Bengal (Emergency) Requisition of Property Act, 1948, held, liable to be charged with fixed court fee of Rs. 6.25 under Art. 11, Sched. 11, Court Fees Act.
Chunial v. Sheo Charan Lal 47 All. 756; Krishna Mohan Singh v. Raghunandan Pande I L R 4 Pat. 336 ; Krishna Mohan v. Raghu nandan A I R 1925 Pat. 392: Megh Raj v. Rupchand Uttatrt chand A I R 1946 Lah. 280 ; In re : Anandalal Chakraborty and others A I R 1932 Cal. 346-35 C W N 1103; 18 C L J 308 ; Official Liquidator v Mir Qureshi A I R 1945 Lah. 146 ; Sohanlal v. Province of Bengal 50 C W N 820; Hijri Yirji v. Government of Bombay A I R 1945 Bom. 348; In re: Yenkataratnam A I R 1941 Mad. 639 ; Raghobir Singh v. Dharam Kaar I L R 3 All. 108; Mohhant Anant Git v. Ram Nazar Choube A I R 1938 All. 14; Jagdish Pratap v. Udoi Pratap A I R 1938 All. 97; Secretary of State v. Baij Nath A I R 1932 Oudh 224; Jugal Kishore v. Dina Nath A I R 1934 Lah. 958; 37 C W N 227 ; Tawassul Husain v. Ahmad Husain A I R 1944 Oudh 83; Kanwar Jagat v. Punjab State A I R 1957 Phi. ' 32; 63 C W N 325; Muhammad v. Muhammad Ali A I R 1926 Lah. 343; Debi Din v. Secretary of State A I R 1939 All. 127; A.I R 1961 S C 1047 ; Harish Chandra Chatterjee v. Bhabatarini Debi 8 C W N 321 ; Craies on Statute Law, 5th Edn., p. 125, Maxwell on Interpretation of Stautes, 5th Edn. and I L R 1939 All. 142 ref.
(b) Interpretation of statutes ‑ Apparent conflict between two provisions of statute‑Courts duty bound to harmonize them and place such construction as shall avoid conflict.
Special Reference No. 1 of 1957 P L D 1957 S C (Pak.) 219 and A I R 1961 S C 420 ref.
(c) Interpretation of statutes ‑ Fiscal statutes ‑ To be construed strictly‑Ambiguity in statute‑Benefit of doubt to be given to citizens ‑ Two equally reasonable constructions possible ‑ Construction favourable to citizens to be prefer red.
Megh Raj v. Rupchand Uttamchand A I R 1946 Lah. 280 and Commissioner of Income‑tax v. Hossen Kasam Dada P L D 1901 S C 375 ref.
Moinul Huq and Akram Hossain Amin for Petitioner.
T. H. Khan, Senior Government Pleader for Respondent.
Dates of hearing : 9th, 10th and 11th January 1968.
JUDGMENT
M. R. KHAN, J.‑The petitioner Mrs. Momtaz Malik was the owner of parts of C. S. Plots Nos. 52, 56 and 67 of Mouza Barabo under P. S. Tejgaon, Dacca.. The area of these lands is '44 acre. These lands were first requisitioned under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948 for a scheme known as `Mohammadpur Model Town' and were subsequently acquired for the same purpose under section 5 of the said Act. As the compensation proposed to be paid for the lands was not acceptable to her, she made an application to the Provincial Government for referring the matter to an Arbitrator in accordance with the provisions of the said Act. Accordingly, an Additional Sub ordinate Judge of Dacca was appointed Arbitrator in the matter'. In the arbitration proceeding, the petitioner claimed Rs. 37,525 as compensation. After hearing the parties, the Arbitrator, by his order dated 24‑9‑63, made an award assessing the compensa tion payable to the petitioner at Rs. 10,767 as against the sum of Rs. 37,525 claimed by her. Deducting the sum of Rs. 2,522 already paid to her the Arbitrator made an award for Rs. 8,245 in her favour. Being aggrieved by this award, the petitioner preferred an appeal to the High Court under section 7 (f) of the said Act, valuing the appeal at Rs. 26,75 3' which is the difference between the amount claimed by her and the amount awarded by the Arbitrator. The memorandum of appeal was presented with a fixed court‑fee of Rs. 6.25 and was classified as a First Miscellaneous Appeal, being F. M. A. T. No. 1418 of 1963. The Stamp Reporter of the High Court, however, took the view that this appeal should have been classified as a First Appeal from a decree and ad valorem court‑fee of Rs. 2,432.50 should have been paid on the memorandum of appeal under section 8 of the Court Fees Act. As the petitioner did not agree with this view. the Stamp Reporter, acting under the provisions of section 5 of the Court Fees Act, referred the matter to the Taxing Officer, who is the Registrar of the High Court After perusing the report of IM Stamp Reporter and giving a hearing to the learned Advocate of the petitioner, the Taxing Officer, by his order dated 26‑5‑5, accepted the reference made by the Stamp Reporter and ordered to classify the petitioner's appeal as First Appeal and directed the petitioner to pay the deficit court‑fee within three weeks. The decision of the Taxing Officer was final under section 5 of the Court Fees Act. As the matter appears to be one of general importance, the Taxing Officer, in pursuance of section 5 of the Court Fees Act, could have referred it to the final decision of the learned Chief Justice or of such Judge of the High Court as the Chief Justice might have appointed. But the Taxing Officer did not make any such reference. Being placed in such a situation, the petitioner made a petition to the High Court under Article 98 of the Constitution (hereinafter called writ petition), challenging the legality of the decision of the Taxing Officer with regard to the court‑fee payable on her memorandum of appeal against the Arbitrator's award.
This Court summarily dismissed the petition as non maintainable on the ground that the decision of the Registrar of the High Court in his capacity as Taxing Officer was a decision of the High Court itself. Against the High Court's order dismissing the writ petition summarily, the petitioner obtained leave for appeal to the Supreme Court. As the result of the appeal, the order of the High Court summarily dismissing the writ petition was set aside and the case was remanded to this Court for disposal in accordance with law. In remanding the case, their Lordships of the Supreme Court, however, observed that the point involved in the case is not free from difficulty. After the remand, a Division Bench of this Court issued a Rule on the Taxing Officer the sole respondent to show cause why his order, dated 26‑5‑65 should not be declared to have been passed without lawful authority and to be of no legal effect. Mr. T. H. Khan, the learned Senior Government Pleader appeared in the case to Oppose the Rule. Having regard to the divergence of opinions of different Superior Courts on the point at issue and considering that the matter is one of general importance, the Division Bench desired that the matter should be heard by a larger Bench. Accordingly, this matter came up before this Special Bench. We have heard at length Mr. Moiaul Huq, the learned Advocate for the petitioner and ‑Mr. T. H. Khan, the learned Senior Government Pleader.
The petitioner s contention is that the Arbitrator's award in this case is neither a decree nor an order having the force of a decree and as such her memorandum of appeal against the award is liable to be stamped with the fixed court‑fee of Rs. 6.25 under Article I1 of the Second Schedule of the Court Fees Act. On the other hand, the contention of the learned Senior Government Pleader is that, in view of the provision of section 8 of the Court Fees Act, ad valorem court‑fee is payable on the memo randum of appeal and that the amount of ad valorem court‑fee is to be calculated according to Article 1 of Schedule I of the Court Fees Act. Thus the sole question that arises for determina tion in this case is that the question of proper mount of court -fee payable on the memorandum of appeal presented by the petitioner against the Arbitrator's award. To be more precise, the question is whether fixed court‑fee under Article 11 of Schedule 11 or ad valorem court‑fee under Article 1 of Scheduled I of the Court Fees Act is payable on the memorandum of appeal. In order to deal with this question, it would be useful to look into the scheme of the Court Fees Act as in force in East 'Pakistan. The Act is divided into seven chapters which, as indicated by their heading, purport to deal with different subject‑matters. There are three Schedules appended to the Act. Of them, Schedule I prescribes ad valorem court‑fees, whereas Schedule 11 prescribes fixed court‑fees on different classes of documents. Chapter I consisting of sections 1, 1‑A and 2 is preliminary. Chapter II contains sections 3 to 6. Of them, sections 3 to 5 deal with fees on documents presented in the High Court. Section 3 deals with levy of fees on the original side of the High Court, whereas section 4 is concerned with fees on documents filed, exhibited or recorded in the High Court in its extraordinary original (both civil and criminal), appellate and revisional jurisdiction. Section 6 contained in Chapter It. on the other hams, deals with fees on documents presented in other Courts and in public offices. Chapter III relates to computation of fees payable in certain classes of suits and appeals. The other Chapters of the Court Fees Act do not appear to be relevant for our present purpose. Of the several sections in Chapter 11, the most relevant sections for the present purpose are sections 4 and 6. Section 4 provides that no document of any of (tic kinds specified in the First or Second Schedule to the Court Fees Act as chargeable with fees shall be " filed, exhibited or recorded in, or shall be received or furnished by the High Court in any case coming before it in the exercise of its extraordinary original (both civil and criminal), appellate or revisional jurisdiction unless in respect of such document there b.4s been paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document. Similarly, section 6 forbids the filing, exhibition etc. of any of the documents mentioned in the First or Second Schedule to the Court Fees Act in any other Court or in any public office unless in respect of such document there has been paid a fee as indicated by either of the said Schedules as the proper fee for such document. Thus it is clear that the charging provisions for levy of court‑fees on documents presented in the High Court or other Courts and in public offices are contained in sections 4 and 6 of the Court Fees Act, read with the Schedules I and It thereof.
The Court Fees Act was enacted in the year 1870. The drafting of this Act does not appear to be scientific, and it suffers from defects and anomalies. This gave rise to difficulty in the interpretation of its provisions. As a result, divergent decisions were made by superior Courts in many a case. In Chunilal v. Sheo Charan Lal (47 All. 756) the Allahabad High Court said:
"The difficulty is really due to the circumstances that the amendments of the Court Fees Act have not kept pace with the amendments of the Code of Civil Procedure."
In Krishna Mohan Singh v. Raghunandan Pande (I L R 4 Pat. 336) the learned Chief Justice of the Patna High Court said
"The wording of this Act is in some respect certainly unscientific and difficult to interpret and its interpretation has been the subject of a multitude of decisions in the Courts."
There are instances of anomalies in the Court Fees Act. For example, an appeal to the High Court under a special statute against the decision of a statutory functionary like the Arbitrator, as in this case, does not come under any of the jurisdictions of the High Court mentioned in section 4 of the Court Fees Act, inasmuch as the Arbitrator is a persona designata and does not function as a Court. In this connection, it is noticed that Article 1 of Schedule I speaks of presentation of memorandum of appeal to a Civil or Revenue Court, but not to the High Court in its extraordinary original appellate or revisional jurisdiction. For these reasons, one may possibly argue that no court‑fee is payable under Article 1 of Schedule I on an appeal presented to the High Court against an award of a statutory functionary like an Arbitrator who does not function as a Court. However, in the instant case, the petitioner does not contend that no court‑fee is payable on her memorandum of appeal. It was observed in A I R 1925 Pat. 392, A I R 194b Lah. 280 and A I R 1932 Cal. 346 that documents presented in a High Court are not excluded from the operation of Article 1 of Schedule I. Next, section 5 gives power to the Taxing Officer to decide if any fee is payable and, if so, the amount of such fee. But section 5 does not provide if the Taxing Officer has, like Courts, jurisdiction to determine the valuation of the subject- matter of the suit or appeal. Again, according to the definition in section 2(4) of the Court Fees Act, `suit' includes an appeal from a decree except in section 8‑A. According to this definition, section 7 of the Court Fees Act which deals with suit includes appeals also. But clause (iv) of section 7 expressly mentions memorandum of appeal. This may give rise to a misunderstanding if suits mentioned in the other clauses of section 7 do or do not include appeals. Lastly, written statement pleading a set‑off or counter‑claim, though mentioned in Article 1 of Schedule I, is not mentioned in section 17, whereas plaint and memorandum of appeal are expressly mentioned in that section.
The purpose of giving these instances is to emphasise that there being anomalies in the Court Fees Act, in construing a particular provision of that Act all other provisions thereof should be taken into consideration, so that the anomaly, if any, may be reconciled. In the case reported in 18 C L J 308 at page 316‑17, Mr. Justice Mukherjee said:
"The question raised is of considerable nicety and by no means, free from difficulty, which is attributable to the fact that the Court Fees Act has been amended piecemeal from time to time . . . . . . . . . . . . . . In my opinion, true mode of interpretation of statute like the Court Fees Act, which has been repeatedly amended, is not to consider individual sections, but to take them as a whole and to give effect to the legislative intent upon a particular matter."
Let us now turn to the point raised in this case. It appears that memorandum of appeal finds mention in sections 7, 8 and 17, Article 1 of Schedule 1 and Articles 5, 11, 17, 20 and 21 of Schedule II of the Court Fees Act. Sections 7 and 17 and Articles 5, 17, 20 and 21 of the Second Schedule are obviously inapplicable to the memorandum of appeal under consideration here. This leaves section 8, Article 1 of Schedule I and Article 11 of Schedule II alone in the field.
Article 11 of Schedule II runs thus.
Number
Proper fee
11. Memorandum of appeal. When the appeal is not from a decree or an order having the force of a decree and is presented.
(a) (b) (c) to a High Court.
Rs. 6'25
Section 8 of the Court Fees Act on which Mr. T. H. Khan, the learned Senior Government Pleader relies reads as follows:‑
"8. Amount of fee payable under this Act on a memo randum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purpose shall be computed according to difference between the amount awarded and the amount claimed by the appellant."
Obviously, section 8 is not a charging section in itself. This section only provides a basis for determination of an appeal against an order relating to compensation for acquisition of land for public purposes, but does not itself prescribe court‑fees. Left to itself, this section cannot fetch any as court‑fee, In order to determine the court‑fee payable in a given case it is essential to take the aid of the applicable Article of the Schedules I and 11 of the Court Fees Act. Mr. T. H. Khan, however, made a feeble attempt to show that section 8 is in itself a charging section and will govern the present case. According to the express provisions of sections 4 and 6, a document is chargeable with fee only when such document is specified in either of the Schedules I and Ii of the Court Fees Act and not otherwise. I am, therefore, unable to agree that section 8 is a charging section. Even the decision of Rankin, C. J. in Re: Anandalal Chakrabarty and others (35 C W N 1103===A I R 1932 Cal. 346) on which Mr. T. H. Khan placed so much reliance in support of his contention that ad valorem court‑fee is payable on the memorandum of appeal in this case, does not support that section 8 is a charging section. In the cited case, Rankin, C. J. accepted the contention that section 8 of the Court Fees Act is not in itself a charging section and that it only provides a rule for computation of fee payable under the Act in a certain classes of cases. His further observation in that case is that the charge in a case governed by section 8 is imposed by Article 1 of Schedule I. There is no dispute that the Court Fees Act is a taxing statute. It is not necessary to cite decisions in support of this view. Suffice it to refer to the following observation of our Supreme Court in the order of remand made by it in this case:
"The main object of the Court Fees Act is to secure revenue for the benefit of the State. It prescribes the fees which are to be paid in respect of documents to be used in Courts, how the fees to be paid thereon are to be ascertained and how the sufficiency of such fees are to be determined. It is thus, in every sense of the term, a fiscal enactment."
Thus the Court Fees Act being a fiscal statute, no fee under that Act can be levied unless there is a charging section where under fee is leviable. Therefore, in order to levy court‑fees, section 8 of the Court Fees Act must be read with Article 1 of Schedule I, which prescribes ad valorem court‑fees on a certain classes of documents including memorandum of appeal. Article 1 of Schedule I is as follows: Proper fee.
Proper Fee
Plaint, written statement pleading a set‑off or counter‑claim or memorandum of appeal (not otherwise provided for in this Act) or of cross‑objection presented in Civil or Revenue Court except those mentioned section 3.
When the amount or value of the sub ject‑matter in dispute does not exceed seventy‑five rupees, for every five rupees or part thereof, of such amount or value in etc . . . . . Provided that the maximum fee leviable on a plaint or memoran dum of appeal shall be fifteen thousand rupees.
Fifty‑six Paisa.
Thus, Article I of Schedule I is subject to one Exception and one Proviso. This Article, on account of the expression "not otherwise provided for in this Act" occurring therein, applies to those cases only which are not otherwise provided for in the Court Fees Act. Obviously, the said expression is an Exception to Article t of Schedule 1. The Proviso is that the maximum ad valorem fee payable on a plaint or memorandum of appeal shall not, in any case, exceed fifteen thousand rupees. When section 8 of the Court Fees Act is not in itself a charging section and when that section by itself cannot fetch court‑fees, the same must be read with Article 1 of Schedule I including its Exception and Proviso. In other words, section 8 cannot be considered in isolation, ignoring the other provisions of the Court Fees Act, particularly when section 8 ‑is not a charging section and requires the aid of some other provision of that Act (i.e. Article 1 of Schedule I) for the levy of court‑fee on a memorandum of appeal.
The important thing to be considered in connection with the point at issue is as to the nature of the award made in this case. The Arbitrator appointed under the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act No. XIII of 1948), though a judicial officer, does not function as a Court and is a persona designata. In contrast, a reference under section 18 of the Land Acquisition Act, 1894 is made to a Court and the award made under such reference, in view of section 26(2) thereof, is a decree. Thus the East Bengal Act No. XI1I of 1948 substantially differs from the Land Acquisition Act, 1894. As regards the nature of the award, the East Bengal Act No. XIII of 1948 nowhere provides that the award made by the Arbitrator shall be deemed to be a decree or an order having the force of a decree. But it is only in rule 9(17) of the Rules made under the East Bengal Act No. XIII of 1948 that it is provided that the award of the Arbitrator shall be enforceable in the same manner and to the same extent as a decree of the Civil Court and the Arbitrator shall be deemed to be a Court. This Provision in the rule does not make the Arbitrator's award under the East Bengal Act No. XIII of 1948 a decree or an order having the force of a decree. The question of execution of an award arises only after the award has been made. Therefore, the mere executability of the award in pursuance of the rule 9 (17) does not alter the nature of the award and make the award either a decree or an order having the force of a decree. This view is amply supported by the Full Bench decision of the Lahore High Court in the case of Official Liquidator v. Mir Qureshi (A I R 1945 Lah. 146). To the same effect is the view taken by the High Courts of Calcutta, Bombay and Madras in the cases of Sohanlal v. Province of Bengal (50 C W N 820), Hirji Virji v. Government of Bombay (A I R 1945 Bom. 348) and In re: Venkataratnam (A I R 1941 Mad. 639). Mr. T. H. Khan concedes that the Arbitrator's award made in the present case is not a decree or an order having the force of a decree, although the award is executable under the rules. Thus the memorandum of appeal presented by the petitioner in the present case is a memorandum of appeal not from a decree or an order having the force of a decree. Article 11 of Schedule II of the Court Fees Act expressly provides that a fixed court‑fee of Rs.6.25 is payable on a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree and is presented to the High Court. Hence, Article 1 I of the Second Schedule is apparently applicable to the petitioner' memorandum of appeal. But this does not immediately resolve V the point at issue, because the rival section 8 and Article 1 of Schedule I are also applicable to memorandum of appeal. As both Article 1 of Schedule I and Article 11 of Schedule II cannot apply to a memorandum of appeal at the same time, it is necessary to determine the kind of memorandum of appeal attracted by either of the said two Articles. In order that court‑fee may be leviable, section 8, for the reasons already stated, must be read with Article 1 of Schedule I. Now, Article 1 of Schedule I prescribes ad valorem court‑fee on plaint, memorandum of appeal etc. not otherwise provided for in the Court Fees Act. The expression "not otherwise provided for in this Act" which operates as an Exception to Article 1 of Schedule 1, is significant and cannot be overlooked in a case coming under section 8 of the Court Fees Act, because it is Article 1 of Schedule I and not section 8 is the charging provision. In other words, Article 1 of Schedule I along with the words "not otherwise provided for in this Act", must be construed and given effect to in all applicable cases including a case covered by section 8. This will be in accord with the rules of interpretation laid down by our Supreme Court in Special Reference No. 1 of 1957 (P L D 1957 S C (Pak.) 219) to the effect that effect should be given to every part and every word of the statute and that the Courts should avoid a construction which renders any provision meaningless or inopera tive and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. The Proviso to Article 1 of Schedule I runs thus:
"Provided that the maximum fee leviable on a plaint or memorandum of appeal shall be fifteen thousand rupees."
It can never be urged that…
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