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Judgment
Obul Reddi, J.—S.T. Appeal No. 32 of 1964 is preferred against the order of the Estates Abolition Tribunal, Machilipatnam in O.P. No. 15 of 1956 rejecting the petition filed by the appellant on 27-9-1950 u/s 54-A (4) of Madras Act 26 of 1948 praying that a sum of Rs. 7,47,442-3-5 be paid to her from out of the advance compensation amount and the compensation that would be deposited later on in respect of Devarkota Estate.
The appellant made the application claiming to be a creditor of the 1st respondent, her husband. A notice was issued to the Advocate for the appellant on 3-2-1964 calling upon him to pay ad valorem court-fee on or before 12-2-1964. It was represented to the Tribunal that no further court-fee was payable under the Rules then in force framed u/s 67 of the Act regarding the court-fee payable. The Tribunal did not agree with the contention put forth by the counsel appearing for the appellant and relying upon the new Rules notified and published in the Andhra Gazette dated 18th August 1955, directed the appellant to pay the deficit court-fee as provided in the Rules which came into force on the aforesaid date on or before 23-3-1964. As the deficit court-fee was not paid as ordered by the Tribunal, a consequential order was made by it on 25-3-1964 rejecting the application. The present appeal and the revision are preferred against that order.
Mr. Y. Suryanarayana, Learned Counsel appearing for the appellant, contended that on the date when the appellant filed the application u/s 54-A (4), the court-fee payable under the Rules was annas twelve, that prescribed court-fee under the Rules then in force was paid by the appellant, that the new rules invoked by the Tribunal were not made retrospectively applicable; and as such, the Tribunal fell into a grievous error in directing the appellant to pay court-fee on ad valorem basis.
Mr. G. Venkatarama Sastry, the Principal Government Pleader, appearing for the State, on Court notice, contended that this Special Tribunal has no jurisdiction to entertain the appeal or revision in a matter arising u/s 54-A (4) of the Estates Abolition Act, and even otherwise, the stage for filing an application by a creditor is only after an enquiry has been held into the claims of persons who are entitled to be maintained from the estate and its income in accordance with the Rules made by the Government in that behalf; and in the case of a creditor who makes a claim in respect of advance compensation deposited by the Government for estates which are not impartible estates, the claims for apportionment can only be enquired into after apportionment among the persons referred to in subsection (1) of S. 44; and as such, the application itself was premature. The Principal Government pleader also contended that although it is not specified that the Rules are made retrospectively applicable, a reading of the second proviso to Rule 1 notified on 18-8-1955 would make it abundantly clear that by implication the new Rules apply to applications where no issues have been framed and as such, the Tribunal was justified in directing the appellant to pay ad valorem court-fee on her claim.
The principal questions that arise from what is contended by either side are (1) whether this special Tribunal has jurisdiction to entertain the appeal and (2) whether the new Rules, which provide for payment of ad valorem court-fee, are impliedly made retrospectively applicable to applications which were pending by 18-8-1955 where no issues were framed by the date of the commencement of the new Rules.
We may straightway say that we are not in agreement with the learned Principal Government Pleader that this appeal is not entertainable in view of the provisions of Ss. 51 and 52. Section 51 provides for appeals and Section 52 deals with the jurisdiction of the Special Tribunal. Section 51 (1) provides that any person aggrieved by any decision of the Tribunal under Sections 43 to 50 may within the period prescribed, appeal to the special Tribunal. Section 52 limits the jurisdiction of the Special Tribunal. Its jurisdiction is limited to the apportionment of the compensation among the persons referred to in Section 43 and the apportionment of the interim payments among the persons referred to in Section 50. Sections 51 and 52 have to be read together and they clearly bring out that any person deeming himself aggrieved by any decision of the Tribunal rendered under Sections 43 to 50 may prefer an appeal to the Special Tribunal. A creditor is entitled to put forth his claim u/s 46. This section reads:
After the compensation has been apportioned among the persons referred to in Section 44, sub-section (1), or where it is more convenient, so to do pending such apportionment, the Tribunal shall take into consideration the applications of the creditors other than those dealt with in Section 45, sub-section (3), and decide the amount to which each such creditor is entitled and the person or persons out of whose share or shares of the compensation such amount should be paid.
There is nothing to suggest from a reading of this section that an application by a creditor should be made only after the apportionment of the compensation among the persons mentioned in sub-section (1) of S. 44. This section also empowers the Tribunal, if it is convenient, to entertain the claims of the creditors also pending such apportionment. It would be open to the Tribunal, if it so considers, to enquire into an application filed by a creditor even before the compensation is apportioned among the persons referred to in sub-section (1) of S. 44. Therefore, we are not in agreement with the Principal Government Pleader that the stage for filing the application is after the apportionment among the persons referred to in sub-section (1) of S. 44. As has already been noticed. Section 51 provides for appeals against any decision rendered by the lower Tribunal under Sections 43 to 50; and in this case, a decision was rendered by the Tribunal rejecting the application made by the appellant which was, in substance, an application made u/s 46 although, Section 54-A (4) alone was quoted. Section 54-A (4) has to be read along with Section 46 as, by sub-section (4) of S. 54-A the provisions of Sections 42 to 46 are made applicable mutatis mutandis in respect of the amount deposited. In view of the specific provision made in sub-section (4) of S. 54-A that S. 46 is applicable in respect of the amounts deposited and in view of the rejection of the application made by a creditor u/s 46, we are of the opinion that it is an appealable order as any one, who feels aggrieved by any decision of the Tribunal under Sections 43 to 50, is entitled, as a matter of right, to prefer an appeal to a special Tribunal. The appeal is therefore in order and this special Tribunal has jurisdiction to entertain the appeal and decide it on merits.
The next and more important question is whether the Rules relied upon by the Tribunal, as held by it, were made retrospective in operation. For this, we have only to see if any Rules were made and in force at the time when the application was made i.e., 27-9-1950 and look into the Rules which have come into force on 18-8-1955. Section 67 of the Act empowers the Government to make Rules to carry out the purposes of this Act; and in exercise of that power, the Governor framed Rules under sub-sections (1) and (2) (f) of Section 67 regarding court-fees payable in G.O. Press No. 3349 dated 18-12-1952. But it does not appear that any Rules were in existence on the date when the application was made. The only Rules that are brought to our notice and placed before us are those made by the Governor on 18-12-1952. Neither the Principal Government Pleader nor the counsel for the appellant has been able to place before us any Rules regarding the court-fees prior to the aforesaid Rules. Presumably, the court-fee of annas twelve was paid under Sch. II of the Madras Court-fees Act (5 of 1922). The Rules regarding the court-fee appear to have been framed only subsequently on 18-12-1952. Rule 1 of the Rules published under G.O. 3349 dated 18-12-1952 provides:
Every application made to a Tribunal under the Act shall bear a court-fee of annas twelve and the Vakalatnamah shall bear a court-fee of rupee one.
It is obvious from this Rule that on 27-9-1950, the date of the application, either no court-fee was payable or if payable it was only under Schedule II of the old Court-fees Act. Therefore, it cannot be said that there was any Rule, on the date when the application was made, framed in exercise of the powers conferred by Section 67 which prescribed higher court-fee and not twelve annas. It should be deemed that the court-fee of annas twelve paid on the application was sufficient on the date when it was filed.
It takes us to the next question whether, by reason of the subsequent Rules made by the Governor as published in Rules Supplement to Part I of the Andhra Gazette dated 18-8-1955, the appellant is required to pay a higher court-fee as provided in the new Rules. Rule 1 reads:
On every petition filed by a person other than the principal landholder, sharer or maintenance-holders as defined in Section 45 (2) (a) and (b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act 26 of 1948), hereinafter referred to as "the Act" claiming the whole or any portion of the advance compensation or Interim payment on account of a debt or liability due to him from the estate or from the share of any of the sharers or maintenance-holders, the Tribunal shall collect ad valorem court-fee as if it were a plaint in a Civil Court;
Provided that:
(i) such court-fee shall be collected on the amount claimed in the petition or such portion as may then be expected to be available with the Tribunal for payment to the applicant, whichever is less;
(ii) the court-fee payable on the portion aforesaid shall be determined by the Tribunal after the respondent files his objection or before the issues are framed;
(iii) x x x
These rules no doubt provide for collection of court-fee on ad valorem basis but they become effective only from the date of their publication in the absence of anything in these rules showing that they were to take effect from an earlier date.
Mr. Venkatarama Sastry sought to rely upon the second proviso to Rule 1 to contend that it will be open to the Tribunal, after the respondent files his objections or before the issues are framed, to direct payment of ad valorem court-fee. We are unable to agree with this submission of his for the reason that this second proviso is intended only to determine the court-fee payable ''on such portion'' as may then be expected to be available with the Tribunal for payment to the applicant. In other words, this second proviso is intended only to cover cases where the claimants have notionally valued the claims as the amounts available or payable cannot be stated with certainty and not with a view to make that proviso retrospectively applicable so as to apply to applications filed prior to the promulgation of these Rules. The new Rules framed and published in the Gazette dated 18-8-1955 do not contain anything to justify the argument of the learned Principal Government Pleader that they are either expressly or impliedly made retrospectively applicable to applications filed prior to that date.
The right that the appellant had to ask for adjudication of her claims by paying a court-fee of annas twelve which was the prescribed fee on the date of the application is a substantive right and cannot be abridged or crippled by the new Rules which have not been made retrospectively applicable. (See Amara Eswaramma and Others Vs. Makkam Seethamma, ). To ask the appellant to pay ad valorem court-fee is to take away the substantive right which accrued to her to have her claim adjudged on an application with a payment of court-fee of annas twelve.
We therefore set aside the order under appeal and direct the Tribunal to take the application on file and dispose it of on merits and according to law. The appeal is accordingly allowed; but, in the circumstances without costs. Advocate''s fee is fixed at Rs. 250/- (Rupees two hundred and fifty-only).
In view of our decision in the appeal, the revision has become unnecessary.