(1) The point for consideration concerns court-fees. This plaint was presented to the Prothonotary of this Court. the plaint has been made out on papers which bear court-fee stamps of the aggregate value of Rs. 2,360/-. These court-fee stamps bear the imprint thereon 'Delhi'. This plaint was originally filed in the Court of the Senior Subordinate Judge, Delhi, and after certain proceedings in Delhi the same was returned to the plaintiffs for being presented to the proper Court on the ground that that Court had no jurisdiction to entertain and try the suit. Under those circumstances this plaint was thereafter presented in the office of the Prothonotary and the office raised a contention that the plaint could not be accepted and filed in this Court unless proper court-fee had been paid to the office which payment would be made to the office on behalf of the State of Bombay. The only question for determination, therefore , is whether, even on the assumption that the amount of the court-fees paid by way of court-fee stamps to the Delhi Court was the proper amount, such payment is a sufficient compliance with the requirements of the Court-fees Act, 1870. As this point concerned the revenues of the State of Bombay, I desired that notice should be given to the State of Bombay. Such notice should be given and the Advocate General has appeared and argued on behalf of the State of Bombay and Miss shamdasani has appeared and aruged on behalf of the plaintiffs.
(2) The relevant provisions are contained in the court-fees Act, 1870, section 6 provides.
'No document of any of the kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed. Exbibited or recorded in any court of Justice.... Unless in respect of such document there has been paid a fee of an amount not less than that indicated by either of the said schdules as the proper fee for such document. It cannot be disputed that a proper court fee has to be filed in this court. The only question is as to what is the meaning when the said S. 6(1) provides that no document shall be filed unless in respect of such document a proper fee has been paid. The question is, paid to whom? Miss shamdasani contended that there is but one court fees Act prevailing in the whole of India and that once the proper amount of court fee has been paid in a court fees Act has been complied with an so no fresh court fee is payable even if the plaint is presented in a court in another state iin India. On the other hand, the Advocate General contended that although the court fees Act, 1870 was originally an Act of the Central Government, the same must, since the government of India Act, 1935 came into force be deemed to have continued in operation as an act of the various provinces of India and later of the various states in India and that therefore court fee is now payable to the state wherein the court in which the plaint is sought to be filed is situated. He contends that therefore on this plaint which is now sought to be filed in ths court court fee must be paid into this court on behalf of the state of Bombay before the same can be filed here.
(3) Originally the court fees Act was an Act of the Central Government and therefore, the court fee was payable to the Central Government. If there was any provision in any Act which was in force into operation which required or authorised that court fee should be paid otherwise than to the central government then of course coure fee could have been paid in accordance with the provisions of such Act, I am however, not concerned with the position that prevailed before the government of India Act, 1935 came into opertion. The government of India Act. 1935 or at least the provisions thereof which are material to this case came into operation in 1937 and it is sufficient for me to consider what was the position that ensued thereupon.
(4) Section 292 of the government of India Act, 1935, provided as follows:
'Notwithstanding the repeal by this act of the government of India Act, but subject to the other provisions of this act, all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India Untill altered or repealed or amended by a competent Legislature or other competent authority.
The court fees Act, 1870 was a law in force in British India immediately before the commencement of part III of the Government of India Act, 1935 and therefore, by reason of the said provisions of the Said S. 292 it continued to be in force in British India. Now, under the government of India Act, 1935 legislation could be either of the centre or of a province and the question arises whether the court fees act, which was orginally a central act. Continued to be the force under the provisions of the said S. 292 as a central act or was it to be deemed to have continued in force as a provincial Act passed by the Provincial Legislatures of the respective provinces.
(5) Now the said S. 292 that the existing legislation which in this case was the court fees act, was to continue in force in British India until altered or repealed or amended by a competent Legislature which was entitled to so alter repeal or amend the court fees act The relevant provision is contained in S. 100 of the act Under Sub-s. (1) of the said s. 100 the Federal Legislature has been given the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to that Act and it has been made clear that in respect of those matters a provincial legislature has no such power. Sub section (2) of that section provided that subject to the provisions of sub s. (1) a provincial legislature also had power to make laws Provincial Legislature also had power to make laws with respect to any of the matters enumerated in with respect to any of the matters enumerated in List II in the said Schedule. The appropriate item about court fees was item No. 1 in the List II in the Seventh schedule and that item included fees to be taken in all courts except the Federal court, Therefore, the Legislature competent to legislate in connection with court fees was a provincial legislature and not the federal or Central legislature because of the provisions of sub s- (3) of S. 100 court fees, was very clearly within the exclusive legislative powers of a Provincial Legislature after the coming into operation of the Government of India Act, 1935 and the Federal Legislature did not have any such power. It is quite clear that it was a Provincial Legislature alone which could after, repeal or amend the court fees Act after the coming into operation of the Government, of India Act, 1935. The provision as regards the powers of a competent legislature to alter, repeal or amend an existing Act contained in S. 292 was considered by the Federal court in United provinces v. Mt. Begum and it was held that S. 292 did not prevent the appropriate Legislature. Which was in that case the Provincial legislature, from giving even retrospective effect to legislation passed by it. Therefore there are two significant facts to be observed about the court fees Act. The first is that since the enactment of the Government of India Act, 1935. As the subject of court fees fell within the said List II. The provincial legislatures alone had and the Central Legislature did not have the power to legislate in respect of court fees and the second is that the provincial legislature had the power to alter, repal or amend the court fees act, 1870 which included the power to do so with retrospective that effect. It is therefore to do so clear that although originally the court fees act was a Central Act, since the coming into operation of the government of India Act. 1935 it ceased to have the Government of India Act, 1935 it ceased to have the governthe essential characterstics of a central legislation and complete plenary powers of legislation, inluding the power to legislate retrospectively with regard to court fees vested in the provincial with regard to court fees vested in the Provincial Legislatures. Therefore, since the date of the coming into operation of the Government of India Act, 1935 the court fees act must be deemd to have continued to be in operation in the various appropriate provincial legislature as a central act because the Provincial in legislature alone had the power to legislature in respect of court fees.
(6) The next position is the one arising under the constitution of I India after the same came into operation. So as the question under consideration is concerned, Art. 372(1) Provides that notwithstanding the repeal by the constituion of the government of India Act, 1935 all the law in force in the territory of India immediately before the commencement of the constitution shall continue in force therein until altered or repealed or competed authority. This provision in the said art 372(1) is authority. This for the purpose of the present consideration identical with that of S. 292 of the government of India Act, 1935 and the court fees act which because of the reasons already stated must be deemed to have been a provincial act before the coming into operation of the constitution has, because of the said provisions of Art 372, contained in force as legislation passed by the appropriate state Legislatures. As the court fees act cannot be deemed to have been continuing as a central act when the constitution came into operation it cannot. After the coming into operation of the constitution, be considered to be an Act of the Union of India what is more, under Art. 246(3) the Legislature of a State has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in List II in the seventh schedule to the consitution, and Item No. 3 of the said List II includes fees taken in all courts except the Supreme court. The position, therefore, is the same as that court. under the Government of India Act, 1935 and it is the State Legislature alone which has the power to legislate in respect of court fees payable in that particular state. Article 266 of the constitution provides that all revenues received by the Government of a State. All loans raised by that government by the issue of treasury bills, loans or ways and means advvances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the consolidated fund of the state. It is clear, therefore, that court fees in respect of which the state government has the exclusive power to legislate under the constitution would form part of the Consolidated Fund of the state which is to be deemed to have passed the court fees Act for that particular state and which levies and recovers the court fees., It is, therefore, clear that the provision in Section 6 of the court fees Act about payment of court fees must mean payment to the government of the state within which state the particular court in which the court fee is payable is situated. That payment of court fee is to be made to the appropriate state is also clear because of another reason. Since the coming into operation of the Government of India Act. The provincial legislature and since the coming into operation of the constitution the State Legislatures have the power to alter and amend the court fees act. 1870. The various provinces or states may, in exercise of that power, increase or decrease the rates of court fees as leviable within that Province or state and the court fees payable in respect of the same item may vary from Province to Province and state to state. In such a state of affairs, the adequacy of the amount of court fee payable in a particular state must be judged in accordance with the court fees. Act as amended and applicable in the particular state. Moreover, under the court fees Act 1870 even without reading therein the amendments made by the provinces or States, there are provisions for thhe refund of court fees paid. E.g., when a decree is obtained by consent of parties before issues are framed in the suit. Let me now consider what would be the effect if such a contingency were to arise in the present case. Court fee has been paid in the Delhi Court and if none was payable in Bomaby and if occasion hereafter arises for refunding any part of the court fee paid by the plaintiffs in this case it would be this court which would make the necessary order and thereupon how can the state of Bombay make any refund when the court fee was initially paid not in Bombay but in Delhi? This again shows that the court fee is payable to the State in situated, and that the reason for the same is that the court fees act is a legislation of that State and the revenue derived thereunder is to form part of the Consolidated Fund of that State.(7) Miss Shamdasni, the learned counsel of the plaintiffs, at one stage contended that court fees do not fall within List II of the Seventh Schedule to the constitution. She argued that undoubtedly court fees in courts other than the supreme court would fall under item No. 3 of list II. She pointed out that item No. 66 of the said List II provides for fees in respect of any of the matters in that List but exludes thereform fees taken in any court. Her argument was that the words but not including fees taken in any court occurring in the said item No. 66 make court fees an exception not only to the provision contained in the proceeding part of the said item No. 66 and if 3 in List II. The provisions of the said two articles are quire simple clear and logical. Item No. 3 of List II specifically mentions fees taken in all courts except the supreme court. The first part of item No 66 reads Fees in respect of any of the matters in this List and is a general provision provinding for fees in respect of the various matters mentioned in the various items in that List. Now, if item No. 66 merely mentioned fees in respect of any of the matters in this list it would have necessarily included fees in respect of matters mentioned in item No. 3 But item No. 3, unlike the various other items in that List, itself provides for fees taken in all courts except the supreme court. Therefore, in order ot avoid confusion and in order to avoid provision being made for fees taken in courts at two places one sepcifically under item No. 3 and the other generally under item No. 66 fees taken in courts were specifically excepted from the general item being item No. 66 because the same had already been provided for specifically under item No. 3 Even on a simple reading of the said two items that appears to be the clear meaning and therefore there is no reason to read or construe the second part of item No. 66, as contended for by Miss Shamdasani.
(8) Under the circumstances, I hold that before this plaint can be filed in this court the plaintiffs are bound to pay the proper amount of court fee in this court on behalf of the state of Bombay.
(9) Miss Shamdasani asks for some time being given to the plaintiffs for payment of the necessary court fees here. I therefore, direct that the plaintiffs may be given time to pay the necessary court fees up to 18-12-1958.