This Court, in Land Acquisition Officer v. Sambaru Bariha, reported in AIR
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK LAA No.64 of 2023 Sub-Collector-Cum-Chairman, RMC, Sambalpur ..... Appellant Mr. L. Sahu, Advocate -versus- Spl. Land Acquisition Officer, Sambalpur&ors. ..... Respondents
Legal Reasoning
Mr. D.K. Behera, ASC CORAM: THE HON’BLE MR. JUSTICE SANJAY KUMAR MISHRA
Decision
ORDER 09.05.2024 Order No. 04. This matter is taken up through hybrid mode. 2. As per the office note, the deficit court fee of Rs.14,822.25 has not been paid. That apart, requisites for issuance of notice is yet to be filed. This Appeal was presented on 20.12.2023 challenging the award dated 24.04.2018 passed in L.A. Case No.39 of 1995. 3. Since the Appellant did not furnish valuation of Appeal so also court fee payable, stamp reporting could not be done. However, a peremptory order being passed on 24.04.2024, the valuation of memorandum of appeal so also court fee payable were furnished by the learned Counsel for the Appellant. As per the Page 1 of 5 report submitted by the Stamp Reporter, there is a delay of 5 years 5 months 1 day in presenting the memorandum of appeal. 4. That apart, as required under law, neither the court fee payable has been deposited nor any application under Section 149 C.P.C. has been filed along with the memorandum of appeal praying for extension of time to pay the deficit court fee. 5. This Court, in Land Acquisition Officer Vs. Sambaru Bariha, reported in AIR 1994 Orissa 90, vide paragraph Nos.2, 5, 6, 10, 11 and 12, held as follows: “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. Page 2 of 5 far as the first question 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 (by an advocate) required 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 Page 3 of 5 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) 6. In view of the admitted facts on record so also judgment of this Court in Sambaru Bariha (supra), the Appeal stands dismissed for non-payment of court Page 4 of 5 fee so also non-taking of steps for deposit of court fee. 7. Learned Counsel for the Appellant submits, since the Sub-Collector, Sambalpur, who is the Chairman of R.M.C., Sambalpur, is busy in election duty because of the ensuing General Election, six months’ time be granted for implementation of the impugned award passed by the referral Court. 8. However, this Court directs the Appellant to implement the award passed by referral Court in L.A. Case No.39 of 1995 within a period of four months hence. 9. Registry is directed to communicate a copy of this order to the court below so also to the Private Respondents. Kanhu (S. K. MISHRA) JUDGE Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 11-May-2024 13:00:59 Page 5 of 5