Jharkhand High Court
Prem Kumar Jalan & Anr. vs Ashok Kumar Jalan & Ors. on 31 July, 2012
Author: P.P. Bhatt
Bench: P.P. Bhatt
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IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 4740 of 2008
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Prem Kumar Jalan & Another ... ... Petitioners
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Ashok Kumar Jalan & Others ... Respondents.
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CORAM: - HON'BLE MR. JUSTICE P.P. BHATT.
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For the Petitioners : - M/s. A.K. Das and Piyush Poddar, Advocates.
For the Respondents : - Mr. Deepak Prasad, Advocate.
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14/31.07.2012The present petition is filed under Article 227 of the Constitution of India for issuance of an appropriate writ/order/direction for quashing and setting aside the order dated 16.07.2008 passed by the District Delegate, Dhanbad in Succession Case No. 12 of 2008, whereby the learned court below has recalled the order dated 16.02.2008 and directed the petitioners to deposit Rs. 4,26,483/- towards additional court fees for the grant of succession certificate.
2. Heard the learned counsel for the petitioners as well as the learned counsel for the Respondents.
3. Perused the material on record.
4. Upon perusal of the material on record, it transpires that the court below by order dated 16th February, 2008, passed an order to grant exemption from paying court fees for the amount as mentioned in Schedule-D as the same was in respect of the provident fund account and further directed the petitioners to make payment of court fees of the rest amount. Subsequent thereto, by order dated 16.07.2008, the previous order dated 16th February, 2008 was ordered to be recalled suo motu, and thereby the present petitioners were directed to deposit a sum of Rs. 4,26,483/- towards additional court fee in respect of Schedule-D.
5. The learned counsel for the petitioners has referred to and relied upon the judgment delivered in the case of Smt. Usha & Others-versus-State of Madhya Pradesh reported in AIR 1993 MP 41. Paragraphs 5 and 6 of the said judgment appears to be relevant for the purpose of deciding the present case. The same are reproduced hereinbelow: -
"5. The provision of deposit accompanying the application, evidently, is not mandatory and it does not constitute any condition precedent to be satisfied for the application to be entertained and tried. Its purport is procedural and it does not affect the applicant's substantive right to make the application contemplated under Section 372 aforequoted, which is not saddled by any other requirement except the that of setting forth in the application the enumerated particulars. It really serves the purpose for which is it is enacted, to provide the "mode of collecting court-fees on certificates" to be issued if and when the application is allowed. Whether any statutory provision is directory or mandatory is the question to be determined by applying the well-settled tests. What consequence ensure from non-compliance with the provision in question is an important factor to be considered along with the other usual norms such as purpose of the statute and object of the particular provision. See in this connection Dalchand, AIR 1983 SC 303 : (1983 Cri LJ 448); M.V. Valipero", AIR 1989 SC 2206; Karnal Litter Karmachari Sanghthan, AIR 1990 SC 2 247 : (1990 Lab IC 301). About the object of the provisions, very little is to be added. About the consequence, few words I would still say. If the deposit contemplated does not accompany the application, no impediment would be created thereby for the Court to entertain the application, try the same and decide if case is made out for issuance of certificate prayed. On the other hand, the purpose of the Act would be defeated creating special jurisdiction in Part X which is to be regarded as Special Law laying down special procedure in accordance with which the application is to be heard and disposed of. The object of the provision being merely collection of Court-fees before a certificate is issued, that is fulfilled when requisite deposit is made before the certificate is issued upon holding the applicant entitled thereto.
6. In my view the provisions of Section 379 aforequoted are to be read as supplemental to those of Article 12 of Schedule I of the Court-fees Act. It is clearly contemplated in Article 12 that court-fees ad valorem is to be paid, not on the application filed making prayer for issuance of a Succession Certificate, but on the "Certificate under Part X of the Indian Succession Act, 1925". For the application, the Court-fees Act makes separate provision in Schedule II and under Article 1 fixed court-fees of Rupees Two is prescribed in respect of an application or petition filed in any Court for which specific provision has not been made in the said Schedule. Section 6, Court-fees Act contemplates the threshold requirement for invocation of jurisdiction of any Court other than High Court by providing that the documents specified in the Schedules of the Act shall not be received by such a Court. Unless in respect thereto the prescribed court-fees is paid, there is no other provision in the said Act prohibiting any application for succession Certificate to be entertained and decided unless ad valorem court-fees is paid in advance for the "certificate" which may or may not be issued in future. It is obvious that liability to pay court-fees under Section 6 is contemplated in respect of the "application" read with Article 1 of Schedule II while in respect of the "certificate" that arises when the applicants' entitlement in that regard is decided, not before that."
6. Moreover I also found substance in the argument advanced by the learned counsel for the petitioners that the provision contained under Section 9 of the Public Provident Fund Act, 1969 has not been properly considered by the court below.
7. In view of the aforesaid judgment, the deficit court fees can be recovered at the time of issuance of certificate and this aspect was required to be considered by the court below but unfortunately, the court below while passing the impugned order dated 16.07.2008 has not properly considered this aspect of the matter.
8. Under the circumstances, the impugned order dated 16.07.2008 passed by the District Delegate, Dhanbad in Succession Case No. 12 of 2008 is hereby quashed and set aside.
9. This writ petition is allowed accordingly.
(P.P. Bhatt, J.) APK