Director, Interim Test Range, Chandipur … v. Order No. 06
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK LAA No.62 of 2019 Director, Interim Test Range, Chandipur ….. Appellant Mr. P.K. Das, C.G.C. Bhagabata Bhoi & another ….. Respondents Vs. Order No. 06.
Legal Reasoning
Mr. M.K. Panda, Advocate (Respondent No.1) Mr. B. Panigrahi, A.S.C. (Respondent No.2) CORAM: JUSTICE SANJAY KUMAR MISHRA
Decision
ORDER 29.04.2024 L.A.A. No.62 of 2019 and I.A. No.131 of 2024 The matter is taken up through hybrid mode. 2. Though the Appeal is of the year, 2019, after taking time on 22.03.2024 and 19.04.2024 to remove the defects, Mr. Das, learned C.G.C. for the Appellant prays for three months’ time to deposit the deficit Court fee, as prayed in the I.A. 3. Mr. Panda, learned Counsel for the private Respondent No.1 submits, since the copy of the I.A. was served on him recently, he could not file written objection. However, Mr. Panda, relying on the judgment of this Court reported in AIR 1994 Orissa 90 (Land Acquisition Officer Vs. Sambaru Bariha) so also order dated 19.01.2024 passed in L.A.A. No.63 of 2019 submits, though this Appeal has been preferred in the year, 2019, neither any application was filed till 03.04.2024 under section 149 of the C.P.C. seeking time to pay the deficit Court fee nor the Court fee has been paid till date, despite granting sufficient time to do so. 4. Mr. Panda, learned Counsel for the private Respondent No.1 further submits, even if there is no stay order, because of the pendency of the present Appeal, his client is debarred from getting the enhanced compensation in terms of the judgment dated 06.04.2019 passed in L.A. Case No.172 of 2012. Mr. Panda, drawing attention of this Court to Paragraphs 6 and 7 of the impugned judgment also submits, the Court below enhanced the compensation amount reasonably referring to judgment passed in L.A. Misc. Case No.415 of 2012, which was marked as Ext. 1 before the Court below so also referring to the judgment of this Court reported in 1989 (I) OLR 408 (Land Acquisition Collector, Cuttack Vs. Ratha Sahu) and the Appeal deserves to be dismissed. 5. Mr. Panda further submits, apart from the same, there is a delay in presenting the Memorandum of Appeal and the stamp reporting could not be done till date because of non-deposit of Court fee. 6. In view of the oral objection raised by Mr. Panda so also the Division Bench judgment of this Court in Sambaru Bariha (supra), it would be apt to reproduce below Paragraphs 2, 5, 6, 10, 11 and 12 of the said judgment. 2. It may first be stated with respect that the learned single Judge is right in his observation that Section 149 of the Code is an exception to the general rule of paying court-fee at the time of filing of a document as enjoined by Section 4 of the Court-fees Act, 1875. It is apparent that an exception cannot be made a rule. Any other view would amount to amending Section 149 of the Code, because, instead of discretion resting with the Court in the matter of allowing payment of the deficit court-fee, it would be open to a litigant to claim this benefit almost as a matter of right, whereas Section 149 gives power to grant time on the Court being satisfied on a case being made out for the same. 5. Despite the above, we would observe that when Section 149 has not put any fetter on the exercise of discretion, it may not be permissible to do so by laying any guideline as such. All that can justifiably be said is that the Court while exercising the discretion has to bear in mind that the power conferred is meant to be exercised in exceptional case and on being satisfied that non-payment of court-fee in time is for reason beyond the control of the appellant and the same is not due to his negligence. The ground shown has therefore to be adequate, cogent and strong, because, otherwise the exception would take the form of rule which would militate against the legislative intention. far as the first question (by an advocate) required 6. With the aforesaid in mind, we answer the three questions framed by the learned single Judge. In so is concerned, we state that the fact of non-receipt of the amount for purchase of court-fee cannot ordinarily be a "good cause" for extension of time, because in such a case non-receipt is not a 'cause'; it is really an effect. The cause lies somewhere else. It is the soundness of the cause basing on which discretionary power has to be invoked to come to the aid of a litigant. It may be a 'cause' for the advocate (Advocate-General in the present case); but the Advocate-General is not the appellant. Appellant is the State and the Advocate-general is an agent of the State within the meaning of Order III of the Code. The cause which has, however, to exist is not one which is relatable as to why the agent is being required to file the appeal with deficit court-fee but why the principal could not make available the required amount to the agent. The cause of the agent cannot be the cause for the principal; and it is the cause of the principal which is relevant, and not the cause at the hand of the agent. In an exceptional case it may however be that though the principal has sent the amount, the same has not reached the hands of the agent, say due to postal strike, natural calamity or the like. In such cases, cause of non- receipt of the amount by the agent may also provide good ground; but not when the required amount had not been remitted at all to the agent. In such a case the appellant shall have to satisfy the court as to why the entire amount could not be made available by him/it to his/its counsel to enable the latter to file the appeal with the required amount of court-fee. 10. Thus, by the time decision is taken to file appeal, expiry of limitation might be round the comer. Prudence would require to file appeals within time without taking the risk of asking for condonation, which may or may not be granted depending upon the facts and circumstances of the case. But than, question Is, if decision to file appeal has been taken within the period of limitation, why should the money iequired for payment of court-fee be not made available? Here comes the question of budgeting. As is known, each department is allotted some fund as per the budget passed by the legislature. It may be that by the time appeal is required to be filed, the budgetary provision is getting exhausted and the financial powers available to the concerned head does not permit drawing of other money, even if available under some other head. In some cases, it may as well be that the position of finance is no such that the same cannot be apportioned at any level till additional fund is made available by supplementary budget. 11. In view of what has been stated above, we would state that when State asks for time to pay the deficit court-fee, a simple statement like the one at hand that the amount required has not been received from the concerned authority is not sufficient at all to invoke the discretionary power conferred by Section 149 of the Code. Adequate reason(s) must be assigned to the court to show that the appeal is being filed with deficit court-fee because of circumstances beyond the control of the concerned department. If negligence lies at the root of the same, the court may well refuse to invoke its discretionary power. 12. The third question would be relevant only in appeals under Section 54 of the Land Acquisition Act, which, according to us cannot be treated differently from other appeals. The fact that the claimant shall be paid interest in case of delayed disposal has no relevance to the question of exercise of discretionary power under Section 149 of the Code, inter alia, because public money cannot be allowed to be used to benefit a private person, if by due diligence the same can be avoided. A respondent in a case under Section 54 of the Land Acquisition Act may not be felt aggrieved at the delay in disposal of the appeal because he would be compensated by payment of interest. But the larger public interest would suffer where the State is the appellant inasmuch as the money which would have been available to the State, if interest would not have been required to be paid because of delay in disposal, could have been put to better use and more pressing public use. So, the fact that the claimant would be paid interest is, to repeat, not a relevant consideration while seized with the question of exercising discretionary power under Section 149 of the Code.” (Emphasis supplied) 7. As the Application under Section 149 of the C.P.C. was presented on 05.04.2024 i.e. almost after about four and half years of presenting the Appeal and the Court fee is yet to be paid and no cogent reason has been assigned in the I.A. explaining the delay in taking steps to deposit the deficit Court fee till date, this Court is not inclined to allow further time to deposit the deficit Court fee, as prayed in this I.A. 8. Accordingly, the I.A. stands dismissed. As a consequence thereof, the Appeal also stands dismissed for non-deposit of Court fee. 9. In view of the dismissal of the Appeal, the Appellant is directed to implement the impugned judgment dated 06.04.2019 passed in L.A. Case No.172 of 2012 within a period of eight weeks hence. Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-May-2024 11:53:22 (S.K. MISHRA) JUDGE padma