1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1659 OF 2005 Smt.Tarabai Bhausaheb Deokar .. Petitioners versus Jaywant Mahepati Balwadkar & Ors. .. Respondents Mr.Surel S. Shah for the petitioner. Mr.Ravi Kadam, Advocate General with Mr.V.A.Sonpal, A.G.P for the State. ALONGWITH WRIT PETITION NO.3182 OF 2008 ALONGWITH WRIT PETITION NO.3183 OF 2008 ALONGWITH WRIT PETITION NO.3187 OF 2008 Abdul Hameed Mohd. Ishaq Khan .. Petitioner (In all petitions) versus Mohd.Jainuddin Mujawar & Ors. .. Respondents (In all petitions) Mr.G.S.Godbole i/by Ms.Manjiri Parasnis for the petitioner. Mr.Surel S. Shah for respondent No.1. Mr.Ravi Kadam, Advocate General with Mr.V.A.Sonpal, A.G.P for the State. CORAM : ABHAY S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED : 7th October 2009. DATE ON WHICH JUDGMENT IS PRONOUNCED : 15th December 2009. JUDGMENT: . In these petitions under Article 227 of the Constitution of India, a 2 common question arises as regards the valuation of the suit lands for the purposes of court fees in accordance with the Bombay Court Fees Act, 1959 (hereinafter referred to "the said Act of 1959"). Before considering the submissions made by the learned counsel, it will be necessary to briefly consider the facts of the case. THE FACTS IN WRIT PETITION NO.1659 OF 2005: 2. In Writ Petition No.1659 of 2005, the petitioner who is the original plaintiff has challenged the judgment and order dated 9th December 2004 passed by the learned sixth Joint Civil Judge (Junior Division) at Pune. The petitioner in the said writ petition filed a suit for declaration that the Release Deed dated the 2nd June 2003 executed by him in favour of the first respondent (first defendant) is illegal, null and void. The second prayer in the suit is for partition of the suit property by metes and bounds. The third prayer is for perpetual injunction restraining the respondents (the defendants) from creating any third party interests in respect of the suit property. The suit property subject matter of the said suit comprises of the lands assessed to land revenue situated at at village Balewadi, Taluka Haveli, District Pune and more particularly described in paragraph 1 of the plaint . 3. In the said suit, some of the defendants made an application purporting to be an application under section 9-A of the Code of Civil Procedure, 1908 3 (hereinafter referred to "the said Code"). In the said application it was pointed out that the suit is valued for the purposes of court fees and jurisdiction on the basis of assessment of the lands forming part of the suit property. It was contended that the valuation ought to have been made by the petitioner as per the market value of the lands in as much as the said lands were situated in a residential zone. It was submitted that if the suit was valued on the basis of the market value of the lands, the Court of a Civil Judge (Junior Division) will not have pecuniary jurisdiction to entertain and try the suit. On the basis of the said application, the learned trial judge framed issues on valuation and jurisdiction and directed that the said issues shall be tried as preliminary issues. 4. By the impugned judgment and order, the learned trial judge held that his court had no jurisdiction to entertain and try the suit. The learned judge held that the suit will be governed by section 6 (iv) (ha) of the said Act of 1959 and court fees will be payable on the basis of market value of Rs.85,95,000/-. The learned judge directed that the petitioner should withdraw the suit and file it in proper Court. THE FACTS IN WRIT PETITION NOS. 3182, 3183 AND 3187 OF 2008: 5. Writ Petition Nos.3182, 3183 and 3187 of 2008 have been filed by the petitioner who filed three separate suits. The suit subject matter of writ petition no. 3182 of 2008 relates to the plot of land at village Majrewadi , Taluka North 4 Solapur, District Solapur which was stated to be an agricultural land assessed to payment of land revenue. The first prayer in the suit is for perpetual injunction restraining the respondents (defendants) from disturbing the possession of the petitioner over the suit land. The second prayer in the alternative was for passing a decree for possession in the event respondents were found to be in possession of the suit land. A prayer was also made for removal of encroachment made by the fourth respondent. According to the case of the petitioner, the suit was governed by article 23 (f) of schedule II of the said Act of 1959 insofar as prayer for perpetual injunction is concerned. As far as the relief in the alternative is concerned it was submitted by the petitioner that the suit will be governed by section 6 (v) (a) of the said Act of 1959. For the said relief, the suit was valued at an amount equal to 40 times the revenue assessment in respect of the suit land. 6. In the written statement is filed by the respondents, a contention was raised that prior to institution of the suit, the suit land has been converted for non-agricultural use and therefore the valuation of the suit made by the petitioner was improper. An application was made by the defendants/respondents at Exhibit 41 seeking a direction against the petitioner to value the suit land as per the market value and to pay ad- valorem court fees on the market value. It was prayed that if the petitioner fails to value the suit on the basis of market value and to pay the court fees accordingly, the plaint be rejected by exercising power under Rule 11 of order 5 VII of the said Code. By the impugned judgment and order dated 12th December 2007, the learned trial judge allowed the said application by holding that the suit land has been converted into non-agricultural use and therefore, as per section 6 (v) of the said Act of 1959, the suit will have to be valued as per the market value of the suit land and structures thereon. The learned judge directed that the petitioner shall pay necessary court fees on the market value of the suit land and shall amend the plaint accordingly. The learned judge further directed that if the compliance was not made with the said direction within a period of one month from the date of the order, then further order shall follow. The facts of two other petitions are more or less identical and the impugned orders are also similar. However, in the suit subject matter of writ petition no. 3187 of 2008, there is no prayer for removal of encroachment. In the said suit, apart from the prayer for perpetual injunction, there is a prayer in the alternative for passing a degree of possession in the event the respondents are found to be in possession. 7. When Writ Petition Nos.3182, 3183 and 3187 of 2008 came up before this court on 25th November 2008, an order was passed recording that the petitions will have to be decided finally as per the earlier order. This Court observed that the presence of the learned Advocate General will be necessary for assisting the Court in as much as if the contentions raised by the petitioner are accepted, the revenue in the form of court fees will be affected. 6 THE SUBMISSIONS: 8. The learned counsel appearing for the petitioner in writ Petition nos. 3182, 3183 and 3187 of 2008 has made detailed submissions. He invited my attention to relevant provisions of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the Revenue Code"). He submitted that under section 64 of the Revenue Code all lands , whether applied to agriculture or other purposes, are liable to payment of land revenue to the State Government except the lands which were specially exempted . He submitted that the Revenue Code does not make any distinction between a land which is put to an agricultural use and a land put to any non-agricultural use. He invited my attention to section 67 of the Revenue Code which lays down that land revenue leviable on any land shall be assessed with reference to use of the land for the purpose of agriculture, residence, industry, commerce etc. He submitted that in view of clauses (a), (b) and (c) of section 6 (v) of the said Act of 1959, where the suit is for possession of a land which is subject to payment of land revenue, the valuation for the purposes of court fees has to be made either at 40 times or 80 times of the revenue assessment depending upon the prayers made . He pointed out that in a suit for possession relating to a house or garden, the suit will have to be valued for the purposes of court fees as per this market value. He placed reliance on the decision of the Apex Court in the case of Madhavrao Vs. The State of Maharashtra [(1971) 1 Supreme Court Cases 542). He submitted that a land subject to payment of land revenue cannot be valued in the same way as a house or garden. He 7 submitted that section 6 (v) of the said Act of 1959 makes a distinction between a land on one hand and a house or garden on the other hand. He submitted that in a case to which section 6 (iv) (d) of the said Act of 1959 is applicable, one half or one fourth or full ad-valorem court fees is payable depending upon the prayers. He submitted that the said one half or one fourth or full ad-valorem court fee is required to be calculated in accordance with the court fee payable on a suit for possession of a land subject to the payment of land revenue in accordance with section 6 (v) of the said Act of 1959. He has placed reliance on various decisions of this Court. 9. The learned counsel appearing for the petitioner in writ petition no. 1659 of 2005 submitted that the suit lands subject matter of the suit are assessed to payment of land revenue. He submitted that the learned trial judge has committed an error by holding that the suit ought to have been valued as per section 6 (iv) (ha) of the said Act of 1959 in as much as in the present suit no declaration has been claimed that any sale, or contract for sale or termination of contract for sale, of any movable or immovable property, is void. The declaration claimed in the present suit that the deed of release executed by the petitioner in favour of the first respondent was void. He submitted that even assuming that section 6 (iv) (d) of the said Act of 1959 is applicable, the ad -valorem court fees payable will be in accordance with the test laid down in section 6 (v) of the said Act of 1959. He submitted that in fact the section 6 (iv) (j) of the said Act of 1959 will apply. He submitted that in so far as prayer for 8 partition is concerned, the same will be governed by section 6 (vii) of the said Act of 1959. He submitted that in view of explanation to the said provision, the valuation of the land for the purposes of court fees will have to the as per section 6 (v) of the said Act of 1959. He submitted that the learned trial judge committed an error by holding that he had no pecuniary jurisdiction to entertain the suit. He submitted that in any event, the learned trial judge could not have directed the petitioner to withdraw the suit and to file the same in proper court. 10. In view of the decision of the Apex Court in the case of Madhavrao (supra) ,The learned Advocate General did not dispute that in case of a suit for possession in respect of a land assessed to payment of land revenue, in view of section 6 (v), the valuation for the purpose of court fees will have to be made as per the test laid down therein on the basis of the assessment. Inviting my attention to the prayer subject matter of the suit in Writ Petition No. 1659 in 2005, he submitted that the case will be governed by section 6 (iv) (d) of the said Act of 1959. He submitted that ad-valorem court fees provided in the said section will have to be computed on the basis of actual market value of the land. He submitted that while computing the court fees, the test laid down by section 6(v) will not apply. He submitted at the most the said test can be applied only to a suit simplicitor for declaration. He submitted that in a suit for declaration where in addition any consequential relief other than the relief of possession is claimed, the court fee payable will be one half of the ad- 9 valorem court fee payable on actual market value of the land. He submitted that in a suit for declaration where a consequential relief of possession is claimed, full ad-valorem court fees on the market value of the land will have to be paid. Relying upon a decision of the Apex Court in the case of the Corporation of the City of Bangalore versus M.Papaiaha [(1989) 3 Supreme Court Cases 612), he submitted that in the suits subject matter of the other three petitions , the prayer for declaration is implicit in the prayer for injunction as the petitioner has filed the suits for establishing his title. He submitted that the prayer for possession in the said suits is a consequential prayer and therefore, ad valorem court fees will be payable on market value of the lands in accordance with the third proviso to section 6 (iv) (d) of the said Act of 1959. 11. The learned counsel appearing for the respondents in writ petition nos. 3182, 3183 and 3187 of 1908 supported the impugned orders and submitted that ad-valorem court fee is payable on the market value of the suit lands. The learned counsel appearing for the contesting respondents in writ petition no. 1659 of 2005 supported the impugned order. CONSIDERATION OF SUBMISSIONS AND CONCLUSIONS: 12. I have given careful consideration to the submissions. In Writ Petition Nos.3182, 3183 and 3187 of 2008, the lands subject matter of the suit are 10 plots carved out of the larger land which was admittedly an agricultural land assessed to land revenue. The finding of the trial court is that the plots were converted for non-agricultural use. In the suits, the petitioner is claiming to be the owner of the suit lands. The petitioner is claiming to be in possession thereof. The substantive prayer in the suit is of perpetual injunction restraining the respondents from interfering with possession of the petitioner. The prayer in the alternative is for passing a decree for possession in the event it is found that the respondents are in possession. In two suits, a prayer is also incorporated in the alternative for removal of encroachment allegedly made by the fourth Respondent. Therefore it can be stated that the substantive prayer is for perpetual injunction and the prayer made in the alternative is of the decree for possession. The court fee will be payable on the higher of the two alternative claims. 13. In the suit subject matter of Writ Petition No. 1659 of 2005, the first prayer is for declaration that the deed of release dated 2nd June 2003 executed by the petitioner in of the first respondent is illegal, null and void, and not binding upon the petitioner and the suit property. The second prayer is for partition and separate possession of the petitioner’s share in the suit property. The third prayer is for perpetual injunction restraining the respondents from creating any third party interests in respect of the suit property. The suit property comprises of agricultural lands which are subject to payment of land revenue. There is no declaration claimed that any sale, or contract for sale or 11 termination of contract for sale, of any immovable property is void. Therefore section 6 (iv) (ha) of the said Act of 1959 will have no application. 14. Now turning to Writ Petition Nos.3182, 3183 and 3187 of 2008, as pointed out earlier, the court fee will be payable on the higher of the two claims made in the alternative. The first prayer is for perpetual injunction for protecting the possession of the petitioner. Even assuming that article 23 (f) of schedule II of the said Act of 1959 is not applicable and section 6 (iv)(d) is applicable, the question is what is the court fee payable on the said prayer. Section 6 (iv)(d) of the said Act of 1959 reads thus: “6. .......... (iv) (a) .... (b) .... (c) .... (d) In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non- liability to, attachment with or without sale or other attributes, of immoveable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property or property of any class or community-one-fourth of ad valorem fee leviable for a suit for possession on the basis of title of the subject- matter, subject to a minimum fee of [one hundred rupees]: Provided that if the question is of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee [sixty rupees] which is less: Provided further that, where the defendant is or class under or through a limited owner, the amount of fee shall be [one-third] of such ad valorem fee, subject to the minimum fee specified above: Provided also that, in any of the cases falling under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee; (e) ...........” 12 Therefore, the first part of clause (iv)(d) will be applicable as there is no consequential prayer. The other prayer in the suits is in the alternative. The court fee payable will be one fourth of ad-valorem fee leviable for a suit for possession on the basis of title. A suit for possession on the basis of title is governed by section 6 (v) of the said Act of 1959. The said provision reads thus: “6. ....... (v) 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, and- (a) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government-a sum equal to [forty times] the survey assessment; (b) where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government- a sum equal to [eighty times] the survey assessment; and (c) where the whole or any part of the annual survey assessment is remitted- a sum computed under sub-paragraph (a) or sub-paragraph (b), as the case may be, in addition to [eighty times] the assessment or, the portion of assessment so remitted; ” The argument against the petitioner is that the lands were already converted for non-agricultural use. Clauses (a), (b) or (c) of section 6 (v) are applicable to the lands which are subject to payment of revenue assessment to the Government. Therefore, the question which is required to be considered is whether the land which is converted for non-agricultural use is subject to payment of land revenue. Section 64 of the Revenue Code reads thus: 13 “64. All land liable to pay revenue unless specially exempted.- All land, whether applied to agricultural or other purposes, and wherever situated is liable to the payment of land revenue to the State Government as provided by or under this Code except such as may be wholly exempted under the provisions of any special contract with the State Government, or an any law for the time being in force or any special grant of the State Government. But nothing in this Code shall be deemed to affect the power of the Legislature of the State to direct the levy of revenue on all land under whatever title they may be held whenever and so long as the exigencies of the State may render such levy necessary.” Section 67 of the Revenue Code lays down that the land revenue leviable on any land shall be assessed with reference to the use of the land such as agriculture, residence, industry, commerce etc. In fact the chapter VII of the Revenue Code deals with assessment and settlement of land revenue of the lands used for non-agricultural purposes. Therefore, a land which is converted or put to non-agricultural use is also subject to payment of land revenue unless exempted. 15. Reliance has been placed on the decision of the Apex Court in the case of Madhavrao (supra). In the said case before the Apex Court the dispute was as regards the valuation for the purposes of court fee to be made of a tank which was subject matter of a suit for possession. The Apex Court dealt with clauses (a), (b), and (c) of section 6 (v) of the said Act of 1959. The rele- vant paragraphs of the said decision read thus: “3. The appellants approached the High Court on the revisional side and challenged the decision of the trial court on the question of court fee. The High Court referred to Section 6(i)(v) of the Bombay Court Fees Act, 1959, which was in force at the material time. This provision may be reproduced: 14 “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)-(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 con- cerned it was the market value on which the court fee had to be paid. As re- gards the lands sub-clauses (a), (b) and (c) contained a qualification with re- gard 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. 4. It appears that according to the view of the High Court the court fee is pay- able under Section 6(1)(v) even with regard to land on its value which, ac- cording to the counsel for the State, would be the market-value. In our judg- ment Section 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