Md. Mukhlesur Rahman :
Earlier, during 1967 to 1975, the ordinary Civil were empowered to make orders for correction of the SA 'record-of-rights' in a summary proceeding; i.e. s. 143A was inserted in the State Acquisition Act, 1950 by making an application therefore. In respect of payment of court-fees this sec. 143A(12) of SAT Act (now repealed) provided that" An application under sub-section (I) or memorandum of an appeal under sub-section (7) shall, notwithstanding anything contained in the Court Fees Act, 1870, bear a fixed Court fee of rupee one." Therefore, in under said provision of law a fixed court fees of one taka was fixed by the law.
Now, for correction the present record-of-rights, namely BRS/RS/BS/Dhaka Mohanagar record etc., the State has provided a special tribunal being named "the Land Survey Tribunal" u/s. 145A of the SAT Act. But neither this sec. 145A SAT Act nor any other section of the Act does provide any provision for valuation of suit or payment of court-fees in suits correction of the record-of rights n/s 145A(4) of the Act.
Therefore, when this special provision of law of sec. 145A SAT Act does not provide any provision for payment of court-fees, then we may assume that the general provisions of the Court-fees Act, J870 and the Suit Valuation Act, 1887 will apply in such suits.
Now we may see the concerned provisions of Suit Valuation Act and Court-fees Act.
Valuation of the suit:
However no where I find that how to ascertain valuation of suits for correction of the record-of rights in Suit Valuation or in the Court-fees Act. In this respect sec. 7(xii) of the Court-fees Act provides that in suits not expressly provided for in this section, the amount of fee payable under this Act in suits next hereinafter mentioned (i.e. Schedules I & II to the: Act) shall be computed according to the value claimed, but such value shall not be less than a value which would attract a (Court-fee of less than fifteen taka.
Court fees: So far our inquiry, we do not find anywhere of the Court-fees Act whether advalorem or fixed court fees shall have to be paid in a suit for correction of the record-of-rights. In this respect Article 12(viii) of Schedule II to the Act provides that upon plaint in suits every other suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act fixed court fees of Taka 300 shall have to be paid.
A controversy upon payment of court fees in Land Tribunal Suits and our study in this respect:
Now a controversy has been arisen on the point that in a suit for correction of the record-of rights whether sub-article (ii) or sub-article (viii) of Art. 12 of Schedule II to the Court Fees Act shall apply.
For answering to this controversy we may first mention the concerned provisions:
Article 12: Plaint or memorandum of appeal in each of the following suits-
(ii) to alter or cancel any entry in a register or the names of proprietors of revenue paying estate; Taka 1000 shall have to be paid.
(viii) every other suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act; Taka 100 shall have to be paid.
Under such position of laws as prevailing, someone are of views that in suits for correction of record-of-rights before the Land Survey Tribunal sub-art. (ii) of Art. 12 of Sch II of the CF Act shall apply and therefore, for such suits court fees shall be Tk. 1,000.
But we have to first find out that what type of suit was meant in this art. 12(i i).
This article 12(ii) speaks that in a suit to alter or cancel any entry in a register or the names of properties of revenue paying estates. Sec 3(4) of the Bengal Tenancy Act gave definition of the term 'estate' speaking that "'Estate' means land including under one entry in any of the general registers of revenue-paying land and revenue free lands, prepared and maintained under the law for the time being in force by the Collector of the district, and includes government khas mahals and revenue free lands not entered in any register". Sec. 2(11) of the SAT Act has provided the same definition of the word "estate".
From these definitions as well as from various provisions of the BT Act and the SAT Act, as this term 'estate' was/has been used, we construe that 'estate' connotes zamindary-estate and during the period of zamindary system the Government wourd, under the BT Act, settle lands to the zamindars through its Collectors dividing the lands into various "estates" and the zamindars would settle the lands to the raiyats from their "estates".
We, may also refer to sec 104H BT of the then BT Act; which provided provisions for instituting suits in the civil courts by any person aggrieved by an entry of a rent settled in a Settlement Rent-roll prepared u/ss. I04A to I04F and incorporated in a record-of rights finally published u/s. 103A, or by all omission to settle a rent for entry in such Settlement
Rent-roll and if it appeared to the Court that the entry of rent settled is incorrect, it could declare that no rent is payable and/or also could settle a fair rent.
We have also to mention that' sec. 3(11) of the BT Act provided definition of the word proprietor speaking that "Proprietor" means a person owning an estate or a part of an estate. Therefore, proprietor meant the then owners of the estates or in other words the zaminders.
From a combined reading of the provisions of all these statues, i.e. secs.2(11) & 104H of the BT Act as well as sub-article (ii) of Art. 12 of Schedule II to the Court Fees Act it is clearly construed that art. 12(ii) of CF Act meant two types of suits, i.e. either (i) for alternation or cancellation of any' entry of settlement rents settled u/ss. 104A to' I 04F of the BT Act or (ii) for alternation or cancellation of the names of owners of the estates.
Now, it is pertinent to mention that thereafter the SAT Act was enacted in 1950 for the purpose of abolishing of zamindary system. Sec. 3 of SAT Act empowered the Government to acquire rent-receiving interest of the upper tenants. Which came into force in 14th April, 1956 and thereby all. interests of rent-receivers were acquired by the Government- at that time. Then the Government made a survey and settlement of lands under section 17 of SAT Act for the raiyats who would pay rents to the then rent-receivers which was finally published in 1962-63 and thereby the then raiyats of zamindary period were upgrading into maliks (owners) of the recorded lands u/s. 82(8) of the Act.
It is also mentionable that the first phase of the SAT Act, i.e. secs. 3-78 of SAT Act provide provisions for acquisition of rent receiving interests, ascertainment of compensation assessment rolls of the rent-receivers as well as payment of compensation to them for such acquisition. In this first portion of the Act, it has used the term "estate" in several times.
From our study, we find it unambiguous and crystal clear that in everywhere this word 'estate' has been used to denote on by the zamindary estate. We also see that in the second phase' of the Act, i.e. secs. 79-152, which exclusively deals with the class, status, right and inabilities of the tenants (maliks), it does not utter this very term "estate" even in a single place. Therefore, when the existence of "estate's" had been abolished under first phase, i.e. u/ss. 3-78, of the SAT Act, and now only the second phase, i.e. ss. 79-152, of SAT Act are being dealt with, then application of art. 12(ii) of Sch II of CF Act is absurd.
However. it is interesting to mention that though all the interests of the rent-receivers were acquired u/s. 3 of SAT Act during 1962-63 and thereby the Bengal Tenancy Act itself was repealed u/s 80 of SAT Act and accordingly any suit u/s. 104H of said BT Act had become obsolete at that time, but the legislatures not only did no omit the provision of sub-art. (ii) of Art. 12 of Schedule 2 to CF Act but also have been increasing the amount of taka for such type of suits for alteration/ cancellation of entry of settlement of rents or name of owners In the zamindary estates. Whatever may be, under the situation of the BT Act having been repealed, sub-art. (ii) of Art. 12 of Schedule 2 to CF Act has become infructuous now. Whatever, the legislature might miss doing so absentmindedly, but we cannot say that this sub-article will be applicable in suits for correction of the record-of-rights, which has no nexus with the settlement of rents to zamindary estates or ownership of estates. We may make analogy that at enactment of the Family Courts Ordinance, 1985 all types of suits for dissolution of marriage or restitution of conjugal rights are within the ambit of exclusive jurisdiction of the family courts and civil courts have no such jurisdiction and even though the legislates have been increasing the amount of taka for such suits for dissolution of marriage or restitution of conjugal rights in art, 12(vii) of Sch 11 of the CF Act inattentively.
Our view: Under such study of concerned laws, we may come to an opinion that in respect of the suits for correction of the record of rights before the Land Survey Tribunal a fixed court fee under Article 12 (viii) of Schedule II to the Court Fees Act, now Tk 300 may be paid.