1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NO. 676/2009 & 409/2010 WRIT PETITION NO. 676/2009 1. Shri Laxmikant D. Naik Karmali, son of late Damu D. Naik Karmali, age 70 years, civil engineer, residing near St. Joaquim Chapel, Borda, P.O. Fatorda, Margao, Goa 403 602. 2. Shri Baskar D. Naik Karmali, son of late Damu D. Naik Karmali, age 68 years, businessman, r/o. Cacora, P.O. Curchorem, Goa, 403 706. 3. Shri Narendra D. Naik Karmali, Son of late Damu D. Naik Karmali, age 64 years, Medical Practitioner, r/o. Cacora, P.O. Curchorem, Goa 403 706. The petitioner 3 is represented herein by his Power of Attorney the petitioner no.1. ....... Petitioners. V/s. 1. State of Goa, through its Chief Secretary, Government of Goa, Secretariat, Alto Porvorim, Bardez, Goa 403 521. 2. The Deputy Collector, Sub-Divisional Officer and Land Acquisition Officer, Quepem, Goa. 3. Executive Engineer, Works Division XVIII (Roads Central), 2 P.W.D., Ponda, Goa. ........ Respondents. Mr. P. A. Kholkar, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. P. A. Kamat, Addl. Govt. Advocate for the respondents. WRIT PETITION NO. 409/2010 1. Shri Laxmikant D. Naik Karmali, son of late Damu D. Naik Karmali, age 71 years, civil engineer, residing near St. Joaquim Chapel, Borda, P.O. Fatorda, Margao, Goa 403 602. 2. Shri Baskar D. Naik Karmali, son of late Damu D. Naik Karmali, age 69 years, businessman, r/o. Cacora, P.O. Curchorem, Goa, 403 706. ....... Petitioners. V/s. 1. State of Goa, through its Chief Secretary, Government of Goa, Secretariat, Alto Porvorim, Bardez, Goa 403 521. 2. The Hon'ble District Judge, South Goa, Margao 403 601. 3. The Special Land Acquisition Officer, Water Resources Department, Gogol, Margao, Goa 403 601. 4. The Executive Engineer, Works Division VI, Public Works Department, Fatorda, Margao, Gao 403 602. ........ Respondents. 3 Mr. P. A. Kholkar, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. P. A. Kamat, Addl. Govt. Advocate for respondents No.1, 3 and 4. CORAM : A.S.OKA & F.M. REIS, JJ. Date of reserving the Judgment : 10th August, 2010 Date of pronouncing the Judgment : 16th August, 2010 J U D G M E N T :- (Per A.S. OKA, J.) 1. In Writ Petition No. 676/2009, Rule was issued on 19th January, 2010 and in Writ Petition No. 409/2010, Rule was issued on 7th July, 2010. The issue involved is common and, therefore, the petitions are taken up together for final disposal. The main prayer in the both the petitions is for issuing a writ for striking down Article 3 of Schedule I-A inserted by the Court-fees (Goa Amendment) Act, 1997 (hereinafter, referred to as “the Amendment Act of 1997”) and Article 2-A of Schedule I inserted by the Court-fees (First Goa, Daman and Diu Amendment) Act, 1970 (hereinafter, referred to as “the Amendment Act of 1970”). It is contended that the aforesaid Articles are repugnant to Section 19(xxii) of the Court-fees Act, 1870 (hereinafter, referred to as “the said Act of 1870”). 4 2. As far as Writ Petition No.409/2010 is concerned, the petitioners therein filed an application for reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter, referred to as “the said Act”). On 8th April, 2010, the Special Land Acquisition Officer issued a communication to the petitioners directing the petitioners to affix prescribed court-fees on the application under Section 18 of the said Act, as per the provisions of the said Act of 1870. It is stated in the communication that the District Court has declined to receive the reference application in the absence of the prescribed court-fees. It appears that the petitioners had invited attention of the Special Land Acquisition Officer to the decision of the Apex Court in the case of Kashi Ram Namdeo Zambro vs. State of Maharashtra, ((1996) 1 SCC 289). The prayer in Writ Petition No.409/2010 is for quashing the communication dated 8th April, 2010 containing a direction for payment of court-fees. 3. In Writ Petition No.676/2009, the petitioners made an application under Section 18 of the said Act. A reference was made to the District Court on the basis of the said application. An application was made by the petitioners before the District Court contending that they were not liable to pay the court-fees. By an order dated 21st June, 2003, the said application was rejected by the 5 learned District Judge. Thereafter, the petitioners paid the court-fees under protest. A writ petition was filed in this Court by the petitioners for challenging the said order of the District Court. The said writ petition was disposed of by granting liberty to the petitioners to file a fresh petition for challenging the amendments made by the Amendment Act of 1997 and the Amendment Act of 1970. Accordingly, there is a prayer in the writ petition for refund of the court-fees. 4. The learned Counsel appearing for the petitioners in support of the petitions submitted that under Section 19 of the said Act of 1870, exemption has been granted in respect of certain documents. Under clause (xxii) of Section 19, the applications for compensation under any law, for the time being in force relating to the acquisition of property for public purposes, have been exempted from payment of any court-fee. He submitted that by the Amendment Act of 1970, Article 2-A was inserted in Schedule I to the said Act of 1870, by which ad-valorem court fee was made payable on the applications to the Collector for reference to the Court under Section 18 of the said Act. He pointed out that by the Amendment Act of 1997, identical provision in the form of Article 3 of Schedule I-A has been inserted in the said Act of 1870. He submitted that clause 6 (xxii) of Section 19 exempts an application under Section 18 of the said Act from payment of court-fee. But by amendments, the exemption has been withdrawn. He submitted that the provisions of the Schedule to the said Act of 1870 cannot be contrary to the provisions of Section 19. He submitted that the provisions of Schedule cannot be inconsistent to the provision of a substantative section of the said Act. He submitted that the exemption granted by Section 19 cannot be withdrawn by inserting an article in the schedule, without amending the relevant clause of Section 19. He submitted that under the Bombay Court Fees Act, 1959, Section 20 is pari materia with Section 19 of the said Act of 1870. He pointed out that clause (xv) of Section 20 of the said Act of 1959 provided exemption from payment of court fee to applications for compensation under any law for the time being in force relating to the acquisition of the property for public purposes. He submitted that by amending the schedule, applications under Section 18 of the said Act were made chargeable with court-fee. He pointed out that while doing so, clause (xv) of Section 20 was amended for carving out an exception. He placed reliance on a decision of the Apex Court in the case of M/s. Aphali Pharmaceuticals Ltd., vs. State of Maharashtra and ors. (AIR 1989 SC 2227) . He also placed reliance 7 on the decision of the Apex Court in the case of Kashi Ram Namdeo Zambro(supra). 5. The learned Advocate General pointed out that clause (xxii) of Section 19 of the said Act of 1870 is applicable when an application is made for seeking compensation under any law for the time being in force relating to the acquisition of the property for the public purposes. He stated that there are several enactments under which such applications are contemplated. He pointed out that such applications are contemplated even under Sections 9 and 28-A of the said Act. He submitted that an application under Section 18 of the said Act is not an application for grant of compensation, but it is an application for making a reference to the District Court. 6. The learned Advocate General submitted that the consent of the President of India was obtained to the Amendment Act of 1970 and, therefore, in view of Article 254(2) of the Constitution of India, the same is saved. He submitted that, in any event, the Schedule to the said Act of 1870 is a part of the said Act which has been amended by the legislature. He submitted that the Schedule is not a piece of subordinate legislation, but is a part of the same legislation and, therefore, the argument of inconsistency does not 8 hold good. The learned Advocate General relied upon a decision of the Apex Court in the case of South India Corporation (P) Ltd. vs. Secretary, Board of Revenue Trivandrum and another, (AIR 1964 SC 207). 7. We have given careful consideration to the submissions. At the outset, it must be noted that the challenge to the Amendment Acts is not on the ground of lack of legislative competence. The only challenge is that the amendments are inconsistent with clause (xxii) of Section 19 of the said Act of 1870. Clause (xxii) of Section 19 reads thus : “ 19. Exemption of certain documents. - Nothing contained in the Act shall render the following documents chargeable with any fee :- (i) ... (ii) .... (xxii) Applications for compensation under any law for the time being in force relating to the acquisition of property for public purposes.” 8. By the Amendment Act of 1970 and the Amendment Act of 1997, the Schedule to the said Act of 1870 was amended and a provision has been made for the payment of ad-valorem fee on 9 applications for reference under Section 18 of the said Act. Article 2- A in Schedule I which was inserted by the Amendment Act of 1970, reads thus : “2-A – Application to the One-half of fee on the Collector for a reference to the difference between the Court, under Section 18 of the the amount claimed by Land Acquisition Act, 1894. the applicant and awarded by the Collector, according to the scale prescribed by Article 1 of this Schedule.” By the Amendment Act of 1997, for the State of Goa, the existing Schedules I and II under the said Act of 1870, were substituted by Schedule I-A. Article 3 of the substituted Schedule reads thus : “3.Application to the One half of fee on the Collector for reference to the difference between Court under Section 18 of the the amount claimed by Land Acquisition Act, 1894. the applicant and the (1 of 1894) amount awarded by the Collector according to the scale prescribed by Article 1 of this Schedule.” 10 9. In order to appreciate the submissions, it will be necessary to consider the scheme of Section 18 of the said Act, which reads thus : “ 18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. (2) The application shall state the ground on which objection to the award is taken : Provided that every such application shall be made, - (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” 11 10. After service of notice under Section 9 of the said Act, a person interested in the land subject-matter of acquisition is entitled to make a claim for compensation. To such a claim, clause (xxii) of Section 19 will apply, being in the nature of an application for grant of compensation on account of acquisition of the property for public purposes. Section 28-A of the said Act permits a person interested in an acquired land to apply for grant of compensation by redetermining the same on the basis of an award of the reference Court under Section 18 of the said Act which is passed in case of another land which is acquired under the same notification. Possibly, such an application can be an application covered by clause (xxii) of Section 19. 11. Section 18 contemplates that any person interested who has not accepted the award passed under Section 11 of the said Act, can apply to the Collector for referring objection as regards area of the acquired land, objection regarding the quantum of compensation, objection regarding entitlement of any person to whom the compensation is payable and an objection regarding apportionment of the compensation awarded under an award under 12 Section 11 of the said Act for determination of the Court. On such an application being made, the Collector has a power to make a reference to the Court for determination of the objections. After the reference is made to the Civil Court, the applicant in the application under Section 18 of the said Act is placed in a position of a plaintiff who is required to adduce evidence to discharge the initial burden on him. The reference before the Court is an original proceeding and not an appeal against the award. Thus, an application under Section 18 of the said Act is an application praying for a reference to the Court for determination of any or all the four objections set out in Section 18(1). Thus the application contemplated by Section 18(1) cannot be said to be an application for compensation under law relating to acquisition of property for public purpose. 12. The entire argument of the learned Counsel appearing for the petitioner proceeds on the footing that an application seeking reference under Section 18 of the said Act, is an application for compensation contemplated by clause (xxii) of Section 19 of the said Act of 1870. Such an application under Section 18(1) is not covered by clause (xxii) or by any other clause of Section 19 of the said Act of 1870. In the circumstances, the argument that the Amendment Acts of 1970 and 1997 are inconsistent with clause (xxii) of Section 13 19 of the said Act of 1870 does not stand. We find that the amendments providing for payment of court fees on applications for reference under Section 18 of the said Act are not inconsistent with clause (xxii) of Section 19 of the said Act of 1870. The amendment made to Bombay Court-fees Act will not help the petitioners inasmuch as the concerned legislature has chosen to specifically clarify the position. 13. As far as Writ Petition No.409/2010 is concerned, the learned Counsel appearing for the petitioners relied upon the decision of the Apex Court in the case of Kashi Ram Namdeo Zambro(supra). The said decision of the Apex Court does not consider the amendment made to the said Act of 1870 by the legislature of the State by which the court-fee is made payable on the applications under Section 18 of the said Act. Hence, the said decision has no application. However, in the interests of justice, we grant time of 8 weeks to the petitioners therein to pay the court-fees. As far as other writ petition is concerned, refund cannot be granted as the petitioners are liable to pay court fees. 14. Hence, we pass the following order : (A) The writ petitions are rejected. Rule is discharged. No order as to costs. 14 (B) We grant time of 8 weeks to the petitioners in Writ Petition No.409/2010 to pay the deficit court-fees as provided in the amended Court-fees Act, 1870. A.S. OKA, J. F.M. REIS, J. ssm.