1 caf82,fa910,caf671 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.82 OF 2011 IN FIRST APPEAL ST.NO.32910 OF 2011 Joaquim s Palm Avenue C.H.S.Ltd ...Applicant vs. 1 Brihanmumbai Mahanagar Palika 2 Municipal Commissioner of Greater Mumbai ...Respondents WITH FIRST APPEAL NO.910 OF 2010 Padali-Padgaon Warana Sahakari Pani Purvatha Sanstha Maryadit Padali & Anr. ...Appellants vs. Urunkar Cement Pipes Industries Islampur and Anr. ...Respondents WITH CIVIL APPLICATION NO.671 OF 2011 IN FIRST APPEAL NO.1764 OF 2010 Chaturbhuj Building Tenants Association & Anr. ...Applicants vs. Maharashtra Housing and Area Development Authority & Ors. ...Respondents Mr.V.S.Kapse for the appellants in F.A.No.910/2010 Mr.B.G.Vaidya for the applicant in CAF.No.82/2011 Ms Indrayani Kopalkar for the applicant in CAF.No. 671/2011 Mr.S.G.Deshmukh with Mr.Anilkumar Patil for the Advocates Association of Western India. CORAM : A.S.OKA,J. DATE : FEBRUARY 25,2011 P.C.: 2 caf82,fa910,caf671 1 Placing reliance on the Rule 5 (1) (b) of Chapter XIV of the Bombay High Court Appellate Side Rules,1960 (hereinafter referred to as the Appellate Side Rules), these matters are shown as dismissed as Bhatta is not paid within a period of two weeks from the date on which the order is passed by the Court of issuing notice. 2 Apart from these three matters, in large number of matters the Registry has shown the matters as dismissed by relying upon the proviso to clause (b) of Rule 5(1) of Chapter XIV of the Appellate Side Rules. As large number of matters are involved, I have heard the learned counsel appearing for the Advocates Association. 3 The question is whether the said Rule 5(1)(b) is applicable. It will be therefore necessary to advert to the various provisions of the Appellate Side Rules. Prior to 2 nd November 2006, in Chapter VII of the Appellate Side Rules, in the form Rules 1 and 2, there were elaborate provisions made regarding taxing of process fees and the payment thereof. Time limit was provided therein for taxing process fees. Under Clause (vi) of the Rule 2 thereof, the Registrar was empowered to excuse the delay in payment of process fees. The Bombay High Court Process Fees Rules,2006 (hereinafter referred to as `Process Fees Rules ) were framed in exercise of powers under section 32 of the Bombay Court Fees Act,1959 by this Court. The Process Fees Rules provide that the same shall come into force on the date of their publication in the official Gazette. The Process Fees Rules have been published in official gazette dated 2 nd November 2006. Hence, the Process Fees Rules came into force with effect from that day. The Process Fees Rules provide for one time payment of Process Fees computed at the rate of Rs.50/- for each 3 caf82,fa910,caf671 defendant/Respondent/non-applicant/accused or their legal representatives. By the Process Fees Rules, the earlier procedure of taxing of Bhatta and payment thereof was done away with. On 2nd November 2006, another notification was published in the Government Gazette by which the relevant provisions of the Process Fees Rules were sought to be incorporated in Chapter VII and Chapter XIV of the Appellate Side Rules. Rules 1 and 2 of Chapter VII of the Appellate Side Rules were substituted by new Rules so as to give effect to the Process Fees Rules. The existing Rule 5(I) of Chapter XIV of the Appellate Side Rules was also substituted by the Rule 2 of the Process Fees Rules. The Process Fees Rules are applicable to all Civil and Criminal Courts subordinate to this Court. For giving effect to the Process Fees Rules, substitution of Rules 1 and 2 of Chapter VII and Rule 5(I) of Chapter XIV of the Appellate Side Rules was necessary and therefore, it was done on the same date i.e. 2 nd November 2006 by a separate gazette notification. 4 The Process Fees Rules were amended on 19 th April 2010 and the notification bringing into force amended Rules was published in Government Gazette of 29th April-5th May 2010. By the Amendment, Rules 2(b), 3(ii) (b) and Rule 4(b) of the Process Fees Rules were substituted. Perhaps, the amendments were carried out for meeting the objections raised to the Process Fees Rules by the members of the Bar. As a consequence of amendment to the Process Fees Rules, on the very day i.e. 19th April 2010, the clause (b) of Rule 5(1) of the Chapter XIV of the Appellate Side Rules was also substituted by clause (b) of Rule 2 of the Process Fees Rules as amended on 19th April 2010. Even the notification of the said amendment to the Appellate Side 4 caf82,fa910,caf671 Rules was also published in Government Gazette dated 29th April-5 th May 2010. 5 On perusal of substituted Rules 1 and 2 of Chapter VII and substituted Rule 5(I) of Chapter XIV of the Appellate Side Rules, it is apparent that the said substituted Rules are in terms of the amended Process Fees Rules. 6 The Process Fees Rules are subject matter of challenge in the Original Side Writ Petition no.163 of 2007 (M.P.Vashi Vs. Registrar General, High Court, Bombay and others). It will be necessary to make a reference to order dated 18 th February 2010 passed by a Division Bench of this Court in Notice of Motion no.669 of 2009 in Writ Petition no.163 of 2007. The said order reads thus : . We are informed that the Bombay High Court Process Fees Rules,2006 which are framed pursuant to the provisions of the Bombay Court Fees Act,1959 have been stayed and not been operated at the principal seat at Mumbai and Benches at Aurangabad and Nagpur. It is pointed out that as such the same should also be made applicable to the courts subordinate to this Court. On behalf of Respondent no.1 the learned counsel fairly concedes that that order should also apply to the subordinate courts. In the light of that order dated 5.3.2007 will also be applicable to all courts subordinate to this Court. Motion disposed of accordingly. Writ Petition to be placed on board along with W.P.No.1928 of 2007 and other petitions. (underline supplied) 5 caf82,fa910,caf671 The said order makes a reference to earlier order passed by the Division Bench on 5 th March 2007 in the same writ petition. The report of the registry indicates that the Writ Petition no.163 of 2007 is still pending before the Division Bench of this Court. Thus, the net effect of the aforesaid orders passed by the Division Bench in the said Writ Petition which are operative till today is that the provisions of the Process Fees Rules are not operating. The substitution or amendment of Rules 1 and 2 of Chapter VII and Rule 5 (I) of Chapter XIV the Appellate Side Rules which was made for giving effect to the Process Fees Rules cannot operate. In fact the substituted Rules 1 and 2 of Chapter VII of the Appellate Side Rules are not being implemented and the Registry is following unamended Rules 1 and 2. The Process Fees are being taxed in all matters as provided in unamended Rule 1. In view of interim order in Writ Petition, even amended Rule 5 (I) of the Chapter XIV of the Appellate Side Rules cannot operate and the Registry will have to follow unamended Rule 5 (I) as it stood prior to 2nd November 2006. If clause (b) of the Rule 5 (I) of Chapter XIV of the Appellate Side Rules as amended in April 2010 is applied, the same will be in complete violation of the interim orders of the Division Bench of this Court in Writ Petition no.163 of 2007. 7 So long as orders passed in writ petition no.163 of 2007 are in force, it is apparent that the unamended Rules 1 and 2 of Chapter VII and the unamended Rule 5 (I) of Chapter XIV of the Appellate Side Rules which existed prior to 2nd November 2006 will continue to operate. Accordingly, it is clarified that in view of interim order of the Division Bench, unamended Rules 1 and 2 of Chapter VII and Rule 5(1) of the Chapter XIV of the Appellate Side Rules which were in existence prior to 6 caf82,fa910,caf671 coming into force of the Process Fee Rules by publication in Government Gazette notification dated 2 nd November 2006 will continue to operate. 8 In view of this legal position, the Registry cannot show any matter as dismissed on the basis of the substituted Rule 5(I) (b) of Chapter XIV of the Bombay High Court Appellate Side Rules as amended by Amendment made on 19th April 2010 published in Government Gazette dated 29th April-5th May 2010. 9 Before parting with this order, I find that even assuming that the Process Fees Rules are held to be valid, clause (b) of Rule 5 (I) of Chapter XIV may need amendment. Substituted clause (b) of Rule 5(I) of Chapter XIV reads thus: (b) Such process fees shall be charged and paid within three days from the date of order passed by the Court issuing notice. No Process Fees shall be charged for serving the process again on the same set of defendants/respondents/non-applicants/accused or their legal representatives till the proceedings is disposed of by the Court. . Provided that failure to pay the process fees within two weeks from the date of order passed by the Court will result in automatic dismissal of the proceedings for non- prosecution. In many Courts on every day more than 70 to 80 orders are passed which require notices to be issued to the parties. When such large number of orders are passed 7 caf82,fa910,caf671 every day, the work of typing, signing and uploading of the orders takes long time and therefore, the files do not reach the Registry within a period of two weeks from the date of passing order. Even if one time process fees are to be paid, unless the files are physically received by the Registry, the Process Fees cannot be paid. The Process Fees are paid by affixing Court Fees Stamps. Only on account of delay in receiving papers, the parties may not be able to pay process fees as a result the matter may stand automatically dismissed. Therefore, the Registrar (Judicial-I) may move this Court on the administrative side for carrying out necessary amendment to the aforesaid Rule 5(I)(b). 10 The Registrar (Judicial-I) is directed to forward copies of this order to the Registrars at Aurangabad, Nagpur and Panaji. The Registrar (Judicial-I) will also forward copies of this order to the Advocates Associations at Mumbai, Nagpur and Aurangabad. JUDGE