:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1876 OF 2008 PETITION NO.1876 OF 2008 PETITION NO.1876 OF 2008 Deepak Babuso Magdum & Ors. ..Petitioners V/s The Commissioner, Kolhapur Municipal Corporation & Anr. ..Respondents Mr. N.V. Bandiwadekar for the petitioners Mr. Sandesh Patil i/b Shri Prashant Jadhav for respondent No.2. Mr. S.S. Patwardhan for respondent No.1. CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 23RD APRIL, 2008 : 23RD APRIL, 2008 : 23RD APRIL, 2008 P.C. 1. Heard. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition has been filed impugning order dated 6th March, 2008, by which order, an application filed by respondent No.2 / the defendant No.2, was allowed and the Trial Court directed the petitioners/plaintiffs to value the suit correctly for the purposes of Court fee and jurisdiction and tender the deficit court fees and on failure to do so further order under Order 7 Rule 11 to follow. :2: 3. The suit in the trial Court has been filed in representative capacity by five residents of Kolhapur, the petitioners herein, and they have sought a declaration that the tender granted by Respondent No. 1- Corporation to respondent No.2 who is the defendant No. 2 in the suit in respect of repairs and renovation to be carried out in the temple known as Mahalaxmi temple and the procedure undertaken by the respondent No. 1- Corporation in respect thereof be declared ab-initio void. Thus, according to the petitioners, the correct procedure has not been followed by the Respondent No. 1- Corporation for awarding contract to respondent No.2. 4. The controversy relates to the payment of Court fee under the Bombay Court Fees Act, 1959. The contention of the learned Counsel for the petitioners is that the Trial Court has erred in not considering the provisions of the Bombay Court Fees Act, 1959, in arriving at its findings and that the reliefs sought in plaint has been valued correctly and the Trial Court has erred in coming to the conclusion that the plaint has been under-valued and in directing the petitioners to tender the deficit Court fees on the :3: basis of valuation of Rs. 84,00,000/- which is the amount for which the the tender was allotted to the respondent No. 2. It is contended by the learned Counsel that the petitioners only seek a declaration and that is the only substantive prayer in the plaint. He has invited my attention to para 20 of the plaint wherein the reliefs claimed are valued at Rs.1,000/-. The learned Counsel for the petitioners has candidly admitted that though the provisions of Bombay Court Fees Act have not been correctly mentioned in para 21 of the plaint; however according to him, the figure of Rs. 1,000/- for valuation purposes has been correctly mentioned in para 20. The learned Counsel has further stated that the petitioners would seek an amendment to the plaint in the Trial Court to quote the correct provisions of the Bombay Court Fees Act, 1959. 5 The learned Counsel for the petitioners has invited my attention to Section 6 of the Bombay Court Fees Act, 1959, and submitted that since the prayer of the petitioners in the plaint is only for a declaration, the subject matter of the suit for the purpose of valuation falls under section 6 (iv) (j) :4: of the said Act. The learned Counsel for the petitioner contended that the suit has therefore been correctly valued and proper court fees are paid by the petitioners and the impugned order is required to be set aside. 6. On the other hand, the learned Counsel for the respondent Nos. 1 and the learned Counsel for respondent No. 2 have pointed out the operative part of the impugned order and also have taken me to the various paras in plaint concerning valuation and submitted that the Trial Court has rightly directed the plaintiff to pay the deficit court fees. It is their contention that since the tender allotted to the respondent No. 2 was for Rs. 84,00,000/-, the petitioners are required to pay Court fees on this amount. The learned counsel invited my attention to Schedule I of the Bombay Court Fee Act, 1959, which prescribes the ad valorem fees required to be paid in respect of suits. It is submitted that the present case falls under Item 7 of the said Schedule which requires the petitioner to pay the court fees on "the amount of monetary gain or loss to be prevented according to the scale prescribed under Article 1". :5: 7. I have considered the rival contentions of the parties and I have perused the impugned order and the material on record. I find that the Trial Court has nowhere in the impugned order discussed the provisions of Bombay Court Fees Act, 1959. In my view the learned Trial Judge has erred in coming to the conclusion that the suit has been under-valued. On a bare reading of para 20 and 21 and the prayers of the plaint, it is revealed that the subject matter of the suit for the purpose of valuation squarely falls under Section 6 (iv) (j) of the Bombay Court Fees Act, 1959. which reads thus :- "S. S. S. 6(iv)(j) : 6(iv)(j) : 6(iv)(j) : In suits where declaration is sought, with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad valorem fee is payable, as if the amount of value of the subject matter was one thousand rupees." 8. In my view the reliance of the learned Counsel for the respondents on Item 7 of Schedule I of Ad Valorem fees payable under the said Act is misplaced in as much as Item 7 refers to "any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of :6: being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief aforesaid". When the petitioners are seeking reliefs to declare the tender to be void and challenging the procedure adopted by the respondent No. 1- corporation in awarding the contract, the amount for which the tender was allotted cannot be taken into account, and, there can be no question of any monetary loss or gain of the tender amount and Item 7 of Schedule I of the said Act cannot be said to be attracted. The cause of action is not such which can be evaluated in terms of money. In other words, the cause of action is "not susceptible to monetary evaluation", which expression finds place in Section 6(iv)(j) of The Bombay Court Fees Act, 1959. The prayer in the plaint is simplicitor for a declaration, which relief, as stated above, squarely falls under clause 6(iv)(j) of Bombay Court Fees Act,1959. 9. For the reasons mentioned above, the impugned order is required to be set aside and is accordingly :7: set aside. Suit to proceed. 10. The petition is allowed and rule is made absolute in the aforesaid terms. No costs. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.) More GR. JD. No. 4/98 dtd. 3.7.76 Spl. HCASDD 28 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NOS. 622,1511, WRIT PETITION NOS. 622,1511, WRIT PETITION NOS. 622,1511, 623, 639, 624 OF 1993. 623, 639, 624 OF 1993. 623, 639, 624 OF 1993. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NOS. WRIT PETITION NOS. WRIT PETITION NOS. 90,91,202,228,212,213,227,590,749,792,229, 90,91,202,228,212,213,227,590,749,792,229, 90,91,202,228,212,213,227,590,749,792,229, 1457, 203,750,748,747,719,1066, OF 1994 1457, 203,750,748,747,719,1066, OF 1994 1457, 203,750,748,747,719,1066, OF 1994 WITH WITH WITH CRIMINAL WRIT PETITION NO. 424 OF 1995. CRIMINAL WRIT PETITION NO. 424 OF 1995. CRIMINAL WRIT PETITION NO. 424 OF 1995. WITH WITH WITH CRIMINAL WRIT PETITION NOS. CRIMINAL WRIT PETITION NOS. CRIMINAL WRIT PETITION NOS. 625,735 625,735 625,735 OF 1998. OF 1998. OF 1998. CRIMINAL APPLICATION NO. 2774 OF 1996. CRIMINAL APPLICATION NO. 2774 OF 1996. CRIMINAL APPLICATION NO. 2774 OF 1996. :8: DATE DATE DATE OF DECISION : 10TH DECEMBER, 2003. OF DECISION : 10TH DECEMBER, 2003. OF DECISION : 10TH DECEMBER, 2003. For approval and signature: For approval and signature: For approval and signature: The Hon’ble Mr. Justice J.G. Chitre : The Hon’ble Mr. Justice J.G. Chitre : The Hon’ble Mr. Justice J.G. Chitre : 1. 1. 1. Whether Whether Whether Reporters of local Reporters of local Reporters of local papers papers papers may be allowed to may be allowed to may be allowed to see see see the judgment? the judgment? the judgment? 2. 2. 2. To To To be referred to the be referred to the be referred to the Reporter Reporter Reporter or not? or not? or not? 3. 3. 3. Whether Whether Whether Their Lordships Their Lordships Their Lordships wish wish wish to see the fair to see the fair to see the fair Copy Copy Copy of the Judgment? of the Judgment? of the Judgment? 4. 4. 4. Whether Whether Whether this case involves this case involves this case involves a substantial question of substantial question of substantial question of :9: law law law as to the interpretation as to the interpretation as to the interpretation of of of the Constitution of India the Constitution of India the Constitution of India 1950, 1950, 1950, or any orrder made or any orrder made or any orrder made thereunder? thereunder? thereunder? 5. 5. 5. Whether Whether Whether it is to be it is to be it is to be circulated circulated circulated to the Civil to the Civil to the Civil Judges, Judges, Judges, Magistrates and Magistrates and Magistrates and Sessions Sessions Sessions Judges? Judges? Judges? 6. 6. 6. Whether Whether Whether the case involves the case involves the case involves an an an important question of law important question of law important question of law and and and whether a copy of the whether a copy of the whether a copy of the judgment judgment judgment should be sent to should be sent to should be sent to Nagpur Nagpur Nagpur Office? Office? Office? .... :10: GR. JD. No. 4/98 dtd. 3.7.76 Spl. HCASDD 28 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1876 OF 2008 DATE OF DECISION : 23RD APRIL, 2008 DATE OF DECISION : 23RD APRIL, 2008 DATE OF DECISION : 23RD APRIL, 2008 For approval and signature: For approval and signature: For approval and signature: The Hon’ble Mr. Justice A.A.Sayed : The Hon’ble Mr. Justice A.A.Sayed : The Hon’ble Mr. Justice A.A.Sayed : 1. 1. 1. Whether Whether Whether Reporters of local Reporters of local Reporters of local papers papers papers may be allowed to may be allowed to may be allowed to see see see the judgment? the judgment? the judgment? 2. 2. 2. To To To be referred to the be referred to the be referred to the Reporter Reporter Reporter or not? or not? or not? 3. 3. 3. Whether Whether Whether Their Lordships Their Lordships Their Lordships wish wish wish to see the fair to see the fair to see the fair Copy Copy Copy of the Judgment? of the Judgment? of the Judgment? 4. 4. 4. Whether Whether Whether this case involves this case involves this case involves a substantial question of substantial question of substantial question of law law law as to the interpretation as to the interpretation as to the interpretation of of of the Constitution of India the Constitution of India the Constitution of India :11: 1950, 1950, 1950, or any orrder made or any orrder made or any orrder made thereunder? thereunder? thereunder? 5. 5. 5. Whether Whether Whether it is to be it is to be it is to be circulated circulated circulated to the Civil to the Civil to the Civil Judges, Judges, Judges, Magistrates and Magistrates and Magistrates and Sessions Sessions Sessions Judges? Judges? Judges? 6. 6. 6. Whether Whether Whether the case involves the case involves the case involves an an an important question of law important question of law important question of law and and and whether a copy of the whether a copy of the whether a copy of the judgment judgment judgment should be sent to should be sent to should be sent to Nagpur,Aurangabad, Nagpur,Aurangabad, Nagpur,Aurangabad, Goa Office? Goa Office? Goa Office? ....