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1981 Supreme(Sikk) 6
Sikkim High Court
A. M. BHATTACHARJEE
Union of India - Appellant
Versus
Ashok Tshering Lama - Respondent
Decided On : 07/07/1981
Anup Deb, Standing Counsel, for Appellant N.B. Kharga, for Respondent, D.P. Choudhury, Advocate-General, for the State.
The provisions of the Arbitration Act, 1940, having so long been "recognised", "applied" and"acted on" by the Courts of justice in Sikkim in the administration of justice in all matters relating to arbitration, have accordingly become the laws of Sikkim.
Headnote:
ARBITRATION ACT - COURT FEES - SIKKIM COURT FEES LAW - COURT FEES PAYABLE FOR APPLICATIONS AND APPEALS UNDER THE ARBITRATION ACT, 1940 - COURT FEES LEVIABLE BY JUDICIAL FIATS - TAXATION - ARTICLE 265 OF THE CONSTITUTION - ARTICLE 371F(K) OF THE CONSTITUTION - LAWS IN FORCE - CASE LAWS.
Fact of the Case:
The issue before the court was to determine the amount of court fees payable for applications and appeals under the provisions of the Arbitration Act, 1940, in the state of Sikkim.
Finding of the Court:
1. The provisions of the Arbitration Act, 1940, have been consistently applied by the Courts in Sikkim from long before Sikkim was incorporated in the Union of India as a component State and are continued to be so applied by the Courts in Sikkim to all cases relating to arbitration. 2. The provisions of the Arbitration Act, 1940, having so long been "recognised", "applied" and"acted on" by the Courts of justice in Sikkim in the administration of justice in all matters relating to arbitration, have accordingly become the laws of Sikkim. 3. Though the question before the court was what amount of Court-fees is payable on the various types of applications filed under the provisions of the Arbitration Act, 1940, and also for the appeals preferred against the orders passed on such applications, the court discussed the question as to whether and, if so how, the provisions contained in the Arbitration Act, 1940 have become the laws in Sikkim by being regularly recognised, applied and acted upon by the Courts in Sikkim, because it was pointed out by the learned counsel appearing for the parties that a fee of Rs. 100/- was and is being paid by the parties on applications under the provisions of action 14 read with Section 17 of the Arbitration Act, 1940 for getting the awards filed and made rules of Court in accordance with some direction of the former High Court and the learned counsel have raised the further question as to whether such imposition, in accordance with the orders of the Courts, has also become the law in force. 4. The court held that the Courts by its judicial fiats cannot impose taxes. 5. The court held that the levy and collection of fees also must be by and under the authority of law, which, as already noted, means statutory law. 6. The court held that applications under the different provisions of the Arbitration Act, 1940, are, and cannot be regarded as anything other than, applications only and are to be charged as such. 7. The court held that if any application filed under the provisions of the Arbitration Act, for which no specific provisions have been made under the relevant Sikkim Law, is affixed with Court-fee of Re. 1/- only, that being the maximum amount chargeable for applications filed in Court under the Sikkim Law, no objection can be taken on the ground that such application has not been properly or sufficiently stamped. 8. The court held that no objection can also be taken on the ground of insufficiency of Court-fees to any appeal filed against any order passed on any such application, if such appeal is also affixed with Court-fee of Re. 1/-. 9. The court held that the maintainability of the present Appeals cannot be questioned on the ground of insufficiency of Court-fees and that a Court fee of Re. 1/- being the maximum amount chargeable for applications and petitions under the Sikkim Court-fees law, would be sufficient.
Issues: 1. Whether the provisions of the Arbitration Act, 1940, have become the laws of Sikkim by being regularly recognised, applied and acted upon by the Courts in Sikkim? 2. Whether the Courts by its judicial fiats can impose taxes? 3. Whether the levy and collection of fees also must be by and under the authority of law? 4. Whether applications under the different provisions of the Arbitration Act, 1940, are, and cannot be regarded as anything other than, applications only and are to be charged as such? 5. Whether if any application filed under the provisions of the Arbitration Act, for which no specific provisions have been made under the relevant Sikkim Law, is affixed with Court-fee of Re. 1/- only, that being the maximum amount chargeable for applications filed in Court under the Sikkim Law, no objection can be taken on the ground that such application has not been properly or sufficiently stamped? 6. Whether no objection can also be taken on the ground of insufficiency of Court-fees to any appeal filed against any order passed on any such application, if such appeal is also affixed with Court-fee of Re. 1/-? 7. Whether the maintainability of the present Appeals can be questioned on the ground of insufficiency of Court-fees?
Ratio Decidendi: 1. The provisions of the Arbitration Act, 1940, having so long been "recognised", "applied" and"acted on" by the Courts of justice in Sikkim in the administration of justice in all matters relating to arbitration, have accordingly become the laws of Sikkim. 2. The Courts by its judicial fiats cannot impose taxes. 3. The levy and collection of fees also must be by and under the authority of law, which, as already noted, means statutory law. 4. Applications under the different provisions of the Arbitration Act, 1940, are, and cannot be regarded as anything other than, applications only and are to be charged as such. 5. If any application filed under the provisions of the Arbitration Act, for which no specific provisions have been made under the relevant Sikkim Law, is affixed with Court-fee of Re. 1/- only, that being the maximum amount chargeable for applications filed in Court under the Sikkim Law, no objection can be taken on the ground that such application has not been properly or sufficiently stamped. 6. No objection can also be taken on the ground of insufficiency of Court-fees to any appeal filed against any order passed on any such application, if such appeal is also affixed with Court-fee of Re. 1/-. 7. The maintainability of the present Appeals cannot be questioned on the ground of insufficiency of Court-fees and that a Court fee of Re. 1/- being the maximum amount chargeable for applications and petitions under the Sikkim Court-fees law, would be sufficient.
Final Decision: The court held that a Court fee of Re. 1/- being the maximum amount chargeable for applications and petitions under the Sikkim Court-fees law, would be sufficient. The court directed that the amount paid in excess of Re. 1/- in these two Appeals be refunded, to the Appellants.
JUDGEMENT :- In both the Civil Appeals being No. 6 of 1979 and No. 2 of 1980, a common question has been raised relating to the amount of Court-fees payable for these appeals and the said question has been, as it should be, heard as a preliminary point. It has been urged by the learned counsel for both the appellant and the respondent in both the appeals that there is no provision in the Sikkim Court-fees Law providing for Court-fees payable for applications under the provisions of the Arbitration Act, 1940, or for any appeal from any order passed on any such application. As the question raised relates to revenue of the State, notice was issued to the Advocate General to represent the State and the learned Advocate-General has appeared in pursuance thereof and has made his submissions. This judgment shall govern both the appeals.
2. Arbitration Act, 1940, provides for various types of applications, its anxiety being, as demonstrated in Section 32 and Section 33 thereof, to shut out all suits and to permit an arbitration agreement or award to be enforced, set aside, amended, modified or in any way affected only by applications. The Act has not yet been extended to Sikkim by any notification under cl.(n) of Article 371F or otherwise. But the provisions of the Act have been consistently applied by the Courts in Sikkim from long before Sikkim was incorporated in the Union of India as a component State by and under the Constitution (Thirty-sixth Amendment) Act, 1975, and are continued to be so applied by the Courts in Sikkim to all cases relating to arbitration. The Courts have applied the provisions of the Act not only to arbitration proceedings between the parties, but have also applied the provisions of the said Act in entertaining all applications, appeals and other proceedings as provided in the said Act. Law has been defined by Salmond as "the body of principles recognised and applied by the State in the administration of justice" and to consist "of the rules recognised and acted on by the Courts of justice". If there is a set of principles and the Courts have systematically "recognised", "applied" and "acted on" such principles in matters relating to administration of justice, the principles then acquire the status and force of law. The provisions of the Arbitration Act, 1940, having so long been "recognised", "applied" and"acted on" by the Courts of justice in Sikkim in the administration of justice in all matters relating to arbitration, have accordingly become the laws of Sikkim. To put it in other words, the provisions of the statutory laws relating to arbitration as contained in the Arbitration Act, 1940, have, as a result of their continuous and systematic recognition and application by the Courts in Sikkim, become the laws in force in Sikkim, though not as a piece of legislation. This is also what has been held by this Court in Asharam Agarwala v. Union of India (1978) 4 Sikkim LJ 18), Dealing with the similar question of making of laws by Courts or their Judges, it has been held by this Court in Jas Bahadur Rai v. Putradhan Rai (1978) 3 Sikkim LJ 6) that "if this is characterised as making of laws by Courts, it may be pointed out that the very same thing was done by the Courts in India during the early British period when legislative laws in India were scanty and the Courts in India freely followed and adopted the principles of the English Law in deciding points not covered by the provisions of the Indian Laws in force" and that India being "then a country almost empty of legislative laws", "the void was to a great extent filled up by Courts through their decisions by importing principles of English Law, both Common and Statutory". What was then done by the Indian Courts was obviously clear law making and this Court held further in Jas Bahadur Rai (supra) that the Courts in Sikkim would have to continue to do that amount of law-making until such time when direct legislative laws would begin to hold and occupy
