: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.47 OF 2008 CIVIL APPLICATION NO.47 OF 2008 CIVIL APPLICATION NO.47 OF 2008 IN IN IN FIRST APPEAL (ST.) NO.19478 OF 2007 FIRST APPEAL (ST.) NO.19478 OF 2007 FIRST APPEAL (ST.) NO.19478 OF 2007 State of Maharasthra & Ors. ...Applicants V/s. Bharat Vithalrao Kadam & Ors. ...Respondents Mr.A.A. Kumbhakoni, the Associate Advocate General with Ms.G.P. Mulekar, AGP, for the Applicants. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 7TH MARCH, 2008. DATE : 7TH MARCH, 2008. DATE : 7TH MARCH, 2008. P.C.: P.C.: P.C.: 1. On the last date I have heard the learned Associate Advocate General. 2. It will be necessary to refer to the order dated 9th January, 2008. It is stated in the said order as under :- "2. This is an application filed by the State of Maharashtra for restoration of the First Appeal. The registration of the First Appeal was refused on the ground that the deficit Court fee was not paid by the State Government at the time of preferring the Appeal and though time was granted by the learned Registrar (Judicial) to pay Court fees, the compliance was not made. : 2 : 3. It must be noted here that in hundreds of land acquisition appeals preferred by the State Government, registration of the appeals have been refused by the Registrar (Judicial) on the ground of non-payment of Court fees. It is brought to my notice that in the years 2006 and 2007 more than 500 Civil Applications were required to be filed by the State Government in Appeals arising out of the land acquisition proceedings where the Appeals were dismissed for non-payment of Court fees. 4. The factual position appears to be that when the office of the Government Pleader receives instructions to prefer an appeal, the amount of Court fee is not remitted to the office of the Government Pleader. The Appeals are filed by the office of the Government Pleader with a view to save limitation by paying nominal Court fees. 5. This situation needs to be rectified. Shri Borulkar, the learned Government Pleader states that he will seek necessary instructions in that behalf from the Principal Secretary to the Law & Judiciary Department. To be placed high on board on 25th January, 2008." 3. The applicants have filed an affidavit of Mr.H.M. Suryavanshi, Superintendent (Legal), Law and Judiciary Department, Mantralaya, Mumbai. In the said affidavit it is stated that under Section 7 of the Bombay Court Fees Act, 1959, no Court fee is payable on a Memorandum of Appeal filed against an Award made under section 18 of the Land Acquisition Act, 1894 where State Government is the acquiring body. It is : 3 : pointed out in the said affidavit that in large number of cases, authorities like the City and Industrial Development Corporation of Maharashtra Limited, Maharashtra Industrial Development Corporation Limited and other public sector undertakings are the acquiring bodies. 4. It is pointed out that in such cases the exemption provided under the said Act of 1959 is not available. It is stated that the acquiring bodies are required to make necessary provision for payment of Court fees payable on Appeal. It is pointed out that the concerned authorities are not taking timely steps for securing necessary funds for the payment of Court fees. 5. The learned Associate Advocate General has brought to my notice the circular issued by the Law and Judiciary Department on 22nd February, 2008 to the District Government Pleaders of all the Districts. A copy of the said circular has been placed on record. The said circular incorporates certain directions issued to the District Government Pleaders and Assistant Government Pleaders appearing in References under Section 18 of the said Act of 1894. The said directions are as under:- : 4 : "(1) In Land Acquisition Reference U/s.18 of the Land Acquisition Act pending before the Reference Court, it should be ascertained as to who is the Acquiring Body i.e. State Govt. or any other agency of the State Govt. i.e. MIDC, CIDCO or any other agency. It should be further ascertained that if Acquiring Body is other than the State Govt. and the same is not party to the reference proceedings then such Body should be added as a party Respondent to such proceedings and for that purpose necessary steps should be taken by DGP/AGP. 2) On decision of the Land Acquisition Reference, if the DGP/AGP found that it is a fit case to file an appeal and when Acquiring Body is the state Govt. then you are supposed to send a proposal for an appeal to this office. 3) When Acquiring Body is other than State Govt. and after the decision of LAR you found that it is a fit case to prefer an appeal, you should communicate your opinion to the concerned Acquiring Body and a copy of the same should be sent to this office. You are requested that the above instructions should be brought to the notice of all Addl. Govt. Pleaders and same should be scrupulously observed." 6. My attention was also invited to a circular dated 22nd March, 2004 issued by the Principal Secretary to the Government of Maharashtra and Remembrancer of Legal Affairs. In the said circular, a reference has been made to the decision of the Apex : 5 : Court in the case of U.P. Awas Evam Vikas Parishad V/s. Gyan Devi and Ors. [(1995) 2 SCC 326]. The said decision of the Apex Court recognizes the right of the local authority for whose benefit a land is acquired to participate in the proceedings before the Reference Court and to lead evidence. 7. He also invited my attention to the provisions of Section 20 of the said Act of 1894 and in particular clause (b) of the said Section. Whenever a Reference appears before the Trial Court, the State Government can always invite the attention of the Court to the clause (b) or Section 20 of the said Act of 1894 under which a notice is required to be issued to the acquiring body or to the local authority at whose instance the acquisition has been made. If such notice is issued, the concerned local authority can appear and contest the claim for enhancement and consequently will get a right to prefer an Appeal for challenging the Award, if the same is adverse to the local authority. 8. The learned Associate Advocate General states that in terms of what is stated above, a circular will be issued by the concerned Departments including the Revenue Department to all the Special Land Acquisition : 6 : Officers and Collectors. 9. The aforesaid statements made by the learned Associate Advocate General are accepted with the hope that in future occasion will not arise for the office of the Government Pleader to file hundreds of applications for restoration of the First Appeals which are dismissed for non-payment of Court fees. 10. In sofar as present application is concerned, the same deserves to be allowed in view of the averments made therein. Accordingly, application is allowed in terms of prayer clauses (b) and (c) subject to condition of the applicants removing all office objections including the objection relating to deficit Court fees within a period of eight weeks from today. If compliance is not made, the order of dismissal will stand. 11. The office of the Government Pleader will make available true copies of this order to all the District Collectors, Special Land Acquisition Officers as well as to various local authorities. A copy of this order shall be forwarded to the District Government Pleader of all the Districts. : 7 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]