Full Text
JUDGMENT
SHRI BAL KISHAN BANSAL ..... Petitioner
Advocates who appeared in this case:- For the Petitioner : Mr. Pankaj Gupta, Advocate.
For the Respondent : Mr. Rajinder Handoo, Advocate for respondent nos. 1 and 2.
Mr. Rajeeve Mehra, Sr. Advocate with Ms. Divya Chaturvedi, Advocate for respondent no. 6.
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed to see the judgment? yes
2. To be referred to the Reporter or not? yes
3. Whether the judgment should be reported in the Digest? yes BADAR DURREZ AHMED, J (oral)
1. When this writ petition came up for hearing on the first date, that is, on 01.10.2007, the predecessor Bench recorded that the petitioner challenged the order dated 21.09.2007 passed by the Recovery Officer attached to the Debts Recovery Tribunal, III, Delhi. The said order also records that a statutory appeal under Section 30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the DRT Act) is provided 2009:DHC:3462-DB against the said order dated 21.09.2007. The appeal is to be filed before the Debts Recovery Tribunal. The order further records that instead of filing the appeal, the petitioner had rushed to this court. One of the submissions of the learned counsel for the petitioner was that the Debts Recovery Tribunal was not entertaining the appeal unless the court fees was paid. The petitioner was aggrieved by the fact that court fees was being sought to be claimed from the petitioner although the impugned order related to the sale of property whereby objections preferred by the petitioner to the said sale had been dismissed. According to the petitioner, the filing of an appeal against such an order would not require the payment of any court fee as it is neither in the nature of a final order nor a decree against which the appeal is preferred. The Division Bench hearing the matter on 01.10.2007 was prima facie of the opinion that no such court fees would be payable on an appeal against an order such as the one which is impugned herein and it is for this limited purpose that notice was issued to the respondents.
2. Subsequently, by an order dated 26.11.2007, this court directed the Debts Recovery Tribunal to decide the appeal preferred by the petitioner on merits. However, it was made clear that in case this court ultimately decides that the court fees is to be paid, the same shall be paid by the petitioner and Mr Singla, learned Senior Advocate appearing for the petitioner, gave an undertaking to that effect on behalf of the petitioner. We are told that the appeal is now listed for hearing on 26.08.2009. Thus, in this writ petition the limited question that requires resolution is whether the petitioner is liable to pay court fees on the appeal preferred by it under Section 30 of the DRT Act.
3. We have heard counsel for the parties. Section 30 of the DRT Act reads as under:- “30. Appeal against the order of Recovery Officer.-(1) Notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal. (2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under sections 25 to 28 (both inclusive). ”
4. A plain reading of the aforesaid provision makes it clear that there is no mention of any court fees being payable on the appeal against the order passed by the Recovery Officer. As compared to this provision, the provision of appeal provided in Section 20 of the DRT Act would demonstrate that in that provision there is a clear mention of a fee being paid on the appeal. Section 20(1) of the DRT Act provides that any person aggrieved by an order made, or deemed to have been made, by a Tribunal under the said Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter. Section 20(3) of the said Act reads as under:-
5. It is clear that Section 20(3) requires that the appeal shall be filed within 45 days from the date on which a copy of the impugned order is received by the appellant and that the appeal shall be in such form “accompanied by such fee” as may be prescribed. In this provision, there is a clear reference to the payment of a fee which may be prescribed. The provision to charge a fee has been made in Section 20(3) and the fee prescribed is provided for in Rule 8 of the Debts Recovery Appellate Tribunal (Procedure) Rules, 1994. The fees prescribed are ad valorem fees as per Rule 8(2) of the said Debts Recovery Appellate Tribunal (Procedure) Rules, 1994.
6. Even in respect of an application to the Debts Recovery Tribunal under Section 19, by virtue of sub-rule (3), it is provided that such an application shall be in such form and be accompanied by such documents or other evidence and by “such fees” as may be prescribed. Thus, it is clear that wherever the DRT Act required the payment of fees on an application or an appeal, it has been provided for the same in the substantive provisions contained in the Act itself.
7. We may now refer to Section 36 which provides for the power to make rules. The said provision is as under:-
9. In Supreme Court Employees’ Welfare Association v. Union of India: [(1989) 4 SCC 187], the Supreme Court held:-
10. With regard to usual general delegation of rule making power expressed in the words – „to carry out the provisions of this Act‟, - as contained in section 36(1) of the said Act, the Supreme Court, in Kunj Behari Lal Butail v State of H.P.: (2000) 3 SCC 40 observed as under:-
11. Recently, a similar issue was examined by a Division Bench of this Court in K.K. Nangia & Others v. Government of NCT of Delhi & Anr: (2009) 158 DLT 690. The change of a licence fee under Rule 46(4) of the Delhi Entertainments and Betting Tax Rules, 1997 (hereinafter referred to as the „Betting Rules‟) was under challenge as being ultra vires the Delhi Entertainments and Betting Tax Act, 1996 (hereinafter referred to as the „Betting Act‟). Section 20 of the Betting Act provided that no person shall act as a book-maker unless he obtains a licence from the Commissioners „in the form and manner‟ prescribed. Section 45 of the Betting Act pertained to the power to make rules. As in the case of section 36(1) of the said Act, section 45(1) of the Betting Act stipulated that the Government may make rules „for carrying out the purposes‟ of the Act. Section 45(2)(l) provided that rules may be made by the Government for – „prescription of form and the manner for obtaining book-makers licence‟. As against these provisions, Rule 46(4) of the Betting Rules prescribed the „fee‟ payable for the grant or renewal of licence for book-maker. In this backdrop, the Division Bench held:- “Upon a plain reading of the provisions, it is more than clear that Section 20 of the said Act does not contemplate the charge of a fee. It merely prescribes that no person shall act as a book maker unless he obtains a licence from the Commissioners. The licence is to be in the form and manner prescribed. In our opinion, the expression “form” and “manner” cannot be read to include a prescription for levying a fee. The statute must specifically entail levy of a tax or a fee. Even if it is to be left to the rule making power of the Government, the statute must say so. Section 45(2)(l) merely empowers the Government to make rules with regard to the prescription of the form and manner for obtaining a book maker‟s licence. Section 45(l), which speaks of general rule making power of the Government, also relates to the carrying out of the purposes of the Act. Nowhere in the Act has it been prescribed that for the purposes of obtaining a licence, a book maker has to pay a fee.”
12. That being the position in law, Rule 7 of the DRT Rules, to the extent that it prescribes a fee for appeals from orders of the Recovery Officer, is beyond the rule making power of the Central Government. No such rules could have been made by the Central Government prescribing any fees or rate of fees, for such appeals, inasmuch as the Central Government was not empowered by the DRT Act to do so.
13. We hold that in respect of an appeal under Section 30 against an order passed by the Recovery Officer, no fees has been stipulated in the DRT Act. Consequently, the rules prescribing the application of such a fee are ultra vires the provisions of the DRT Act and, in particular, Section 30 thereof. Thus, no fees are payable in respect of such appeals.
14. We make it clear that we have decided only the question of court fees. All other points taken on merits may be agitated by the parties in the appeal pending before the Debts Recovery Tribunal under Section 30 of the DRT Act. The petitioner would also be entitled to pray for further directions/interim orders during the pendency of the said appeal before the DRT, which shall be considered in accordance with law. We are told that the appeal is fixed for hearing tomorrow, that is, 26.08.2009. Till tomorrow, the respondents shall not take any steps with regard to the subject matter of this writ petition/appeal pending before the DRT. The writ petition stands disposed of.
BADAR DURREZ AHMED, J VEENA BIRBAL, J AUGUST 25, 2009 kks