J.K. Tandon, J.
1. A preliminary question has arisen, as regards the amount of court-fee payable on the petition in this and some other connected petitions owing to the recent amendment made by the State-Legislature in the Court Fees Act, 1870. By the U. P. Second Amendment Act, 1958 which came into force with effect from 1st of April 1959 the State Legislature has made a number of changes in the parent Act as applicable to thisState. One of the changes effected is in Schedule II. Clause (e) of Article 1 of Schedule II of the Act, as itwas prior to the Amendment Act and as it is now, reads as under:
Amended.1. Application or petition.(e) When presented to a High Court :Application or petition.(e) When presented to a High Court.(1) Under the Indian Companies Act, 1913 (Act VIIof 1913), for winding up a company.Sixty two rupees eight annas.(1) Under the Companies Act, 1956, lor the windingup of a company.One hundredrupees.(2) Under Section 115 ofthe Code of Civil Procedure,1908 (Act V of 1908) lor revision of an order.Five rupees.(2) Under Article 226 of the Constitution, notbetng for a writ in the nature of Habeas Corpus; or under Article 227 of theConstitutionFifty rupees.(3) In any other case.Three rupees,twelve annas.(3) For probate or letters of administration tohave effect throughout India;Twenty five rupees.(4) Under section 115 of the Code of CivilProcedure, 1908. for revision of an order; andTen rupees.(5) In any other case not otherwise provided for.Five rupees.
According to the amended version which has for the first time included a provision of court-fee to be payable on a petition under Article 226 of the Constitution, it should bear a court-fee of Rs. 50/-. In view of it the petitions which are being presented of late to this Court are so done with a court-fee of Rs. 50/-. The petitioners of the instant petitions, however, have done so upon a court-fee of Rs. 3/12/- only i. e. the amount earlier payable on petitions generally presented to this Court. The above petitioners who claim that a court-fee of Rs. 3/12/- still continues to be payable are challenging the constitutionality of the U. P. Court-fees (Second Amendment) Act, 1958 as respects the changes made in Clause (e) of Article 1 which requires a fee of Rs. 50/- to be paid on such petitions. It is this particular provision which has been the source of controversy at the moment.
2. For a clearer appreciation of the controversy, as also the points arising in that connection, reference to the following provisions of the Court Fees Act, 1870 and to the Rules of Court is necessary.
3. Chapter II of the Court Fees Act relates to fees chargeable in the High Court. Section 3, which is in the same Chapter, contains provision, firstly, for fees to be paid to the clerks and officers of the High Court and also for fees to be charged in certain specified categories of proceedings initiated before this Court. These proceedings are-
(1) Probate of a will or letters of administration with or without the will annexed.
(2) Undertaking under Section 49 of the Indian Divorce Act.
(4) Petition in a suit under the Native Convert's Marriage Dissolution Act, 1966.
(5) Petition under the Indian Divorce Act etc. and
(6) Plaint or memorandum of appeal under the Parsi Marriage and Divorce Act, 1865.
A fact which deserved to be noticed about these various proceedings provided for in Section 3 is that all those proceedings are original in nature. Theyare initiated directly in the High Court itself. In this aspect of Section 3, it may be said to have made provision for charging of fees in the High Court in certain original matters. It does not, however, include any provision for petitions commenced under Article 226 of the Constitution.
4. Section 4 with which the controversy here is directly concerned, is as under:
'No document of any of the kinds specified in the first or second schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in. Or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its extra-ordinary original Civil Jurisdiction; or in the exercise of its extraodinary original criminal jurisdiction;or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more judges of the said Court, or of a division court; or in the exercise of its jurisdiction as regards appeals from the courts subject to its superintendence; or in the exercise of its jurisdiction as a Court of reference or revision;
unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.
Explanation -- Where the amount of fee prescribed in the Schedules contains any fraction of a rupee below four annas, or above four annas but below eight annas, or above eight annas but below twelve annas, Or above twelve annas but below one rupee, the proper fee shall be an amount rounded off to the next higher quarter of a rupee as hereinafter appearing in the said Schedules.'
5. The only other provision in Ch. II is Section 5 which provides that when any difference arises between the officer whose duty it is to see that any fee is paid under Ch. II and any suitor or attorney as to the necessity of paying a fee or the amount thereof, the question shall be re-ferred to the taxing officer whose decision thereon shall be final. The taxing officer, however, hasdiscretion, where he is of the opinion that the question raised is one of general importance, to refer it to the final decision of the Chief Justice of the Court or of such Judge of the Court as the Chief Justice 'shall appoint either generally or specially in this behalf. So far as this Court is concerned the Chief Justice has declared the Joint Registrar of the Court to be the taxing officer by a general order. An Hon'able Judge of this Court has also been appointed to whom the question should ordinarily be referred for decision under this section.
6. The relevant provisions of the Rules of Court are thus. Chapter XV of the Rules of Court, 1952 Vol. I, which relates to the original and extraordinary original civil jurisdiction exercised by this Court used to make the following provision in Rule 2:
'The provisions of Section 4 of the Court-fees Act, 1870, with respect to the payment of Court-fees in cases coming before the Court in the exercise of its extraordinary original civil jurisdiction shall also apply to cases coming before it in the exercise of its ordinary original civil jurisdiction except in company, testamentary and intestate or matrimonial matters.'
This rule, however, was deleted on 5-11-1953 and a new rule, as Rule 40 as under, was added in Ch. VIII:
'Court-fees shall be payable in cases coming before the Court in the exercise of its ordinary original' civil jurisdiction or in the exercise of its jurisdiction as regards appeals from judgments passed by it in the exercise of its ordinary civil jurisdiction to the extent to, and the manner in which they are payable in similar classes of cases coming before it, under the provisions of Section 4 of the Court-fees Act, 1870.'
7. Rule 40 is thus the provision which today exists in the Rules of this Court. It obviously has been made by virtue of the authority vested in this Court under Article 225 of the Constitution. The purpose of this rule is said to be, at least the Standing Counsel has so claimed, that the provisions or Section 4 of the Court-fees Act, 1870 applicable to proceedings held in this Court in the exercise of its ordinary original civil jurisdiction, as also to appeals from judgments passed by it in the exercise of its aforementioned jurisdiction. It will be a matter for consideration how for this rule has succeeded in achieving its purpose or making the provisions of Section 4 applicable to proceedings commenced under Article 226 of the Constitution.
8. Although the question which the petitioners have raised in their petition is that the U. P. Amending Act, 1958 is ultra vires to the extent it has made provision for payment of fee on petitions under Article 226, this question, as shall hereafter appear, does not require to be answered for deciding whether the court-fees which has already been paid on these petitions is not sufficient. I might also state just here that Sri A. P. Pandey, who led the discussion in these petitions, has conceded that a court-fee of Rs. 5/- and not Rs. 3/12/-will be paid by the petitioners. The petitioners have offered to make up also the deficiency if any, to that extent. This order has, therefore, proceeded on the assumption that fee of Rs. 5/-is chargeable on these petitions.
9. As might have been noticed from the provisions of Section 4 that section has made provision for charging of Court-fee on documents of the kinds specified in the first or second scheduleto the Act if and when they should come before this Court in the exercise of -
(1) its extraordinary original civil jurisdiction;
(2) its extraordinary original criminal jurisdiction;
(3) its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more Judges of this Court or of a Division Bench;
(4) its jurisdiction as regards appeals from the courts subject to its Superintendence; and
(5) its jurisdiction as a Court of reference of revision.
In view, therefore, of the fact that Section 4 is restricted in its application to certain specified classes of jurisdictions only, it cannot avail for requiring court-fee to be charged on documents which might come before the Court in the exercise of its other jurisdictions. Already some such proceedings are governed by Section 3; in their cases the court-fee even though provided in the first or the second Schedule is chargeable by virtue of that section and not Section 4. The fact which cannot, therefore, be disputed is that Section 4 of the Court-fees Act does not provide for the charging of the fee generally in all cases coming before a High Court but it does so for specified category of cases only. In order, however, that a fee may be chargeable on any document, whether under Section 3 of under Section 4, the document must fulfil the conditions of those sections.
10. Another fact which also may be mention ed at this very place is that the U. P. Amendment Act of 1958 while it has amended Clause (e) of Article 1 of Schedule II of the Court-fees Act, 1870 has not made any changes in Section 4 itself. This section has remained in the form and shape it was prior to this amendment.
11. I may now immediately consider the question whether the liability of a suitor to pay court-fee on any document arises under these sections or does it do so by virtue of anything in the Schedules to which these sections refer. The Schedules merely lay down the nature of documents and the rates at which fee shall be calculated on them; so far as the liability for the payment of court-fee goes, it does not arise from the Schedules but arises under the substantive provisions contained in Sections 3 and 4. These are the charging sections and as their language clearly shows, and the Schedules simply provide the rates etc., but the liability is created under them alone.
12. For deciding, therefere, whether any particular document is chargeable or not with any fee the question will need to be considered in the setting of these sections. No amount of alteration in the Schedules will make a document liable to court-fee if it fails to be attracted by these sections. The question which therefore, has to be judged is whether a petition under Article 226 of the Constitution is a document chargeable with any fee because it fulfilled the conditions necessary for the application of Section 4.
13. But before I proceed to consider the above question I would like to point out that for the purposes of determining the liability to pay court-fee under Rule 40 of Ch. VIII of the Rules of Court also it will be necessary to determine the same question once again, namely, that it is a document chargeable under Section 4. This is because this rule also contemplates that court-fee shall be payable to the extent and in the manner in which such fee is payable in similar classes of cases coming before the Court under Section 4. If, therefore, any particular case or class of cases cannotindeed come before this Court under Section 4 -- since the liability will be able to be fixed and found from liability of similar cases under Section 4 -- Rule 40 will not authorise the charging of any fee if a similar case cannot arise under Section 4. In Order that this rule may authorise the charging of court-fee on any document it is imperative that a similar document is chargeable with the fee under Section 4. In other words, it must be a document which can come before this Court in any of the jurisdictions exercisable under that section. Once again, therefore the deciding factor is whether a petition under Article 226 of the Constitution is a document which can be made to be chargeable with court-fee under Section 4.
14. A preliminary objection that has been urged on behalf of the State might be disposed of at this very place. Section 5 of the Court-fees Act has laid down the procedure to be adopted for settling the difference as to necessity or amount of court-fee chargeable under Ch. II of the Act. It is urged that in view of it, since a question as to the amount of court-fee chargeable has arisen the stamp reporter, whose duty it is to see that proper fee is paid, should be asked to report and should there be a difference between him and the petitioners the matter should go to the taxing officer whose decision shall be final unless the latter should decide to refer the matter to the Chief Justice or the Taxing Judge. The contention in other words is that this matter cannot be gone into by me but it must first go to the stamp reporter and thereafter if need be, to follow the course laid down in Section 5.
15. There are two sides of this question: one is with reference to Section 5 itself and the other is with reference to Rule 3 of Ch. XI of the Rules of Court. Section 5 as its language clearly points out applies to cases where the difference arises between a party and the officer whose duty it is to see that any fee payable under Ch. II of the Act as to the necessity of paying a fee or the amount thereof. It is implicit in the section that the difference should arise as respects a case which is claimed to be chargeable with court-fee under Ch. II. The section will have 110 application to a ease where the fee happens or is ultimately held to be chargeable under any other law. The procedure laid down in it will be necessary to be followed in those cases only where a document is or is claimed to be chargeable with court-fee under Ch. II of the Act. Should any document be not chargeable with court-fee under Ch. II Section 5 can-not interpose nor it will be necessary to refer the matter to the taxing officer or to the Taxing Judge under its provisions. Once again, therefore, it is essential for answering the preliminary point that the document, i. e., a petition under Article 226, is found to be chargeable with court-fee under Ch. II.
16. Coming to Rule 3 of Ch. XI of the Rules of Court, it does not in terms apply to a petition under Article 226 of the Constitution. It is applicable to memorandum of appeal or objections under Rule 22 or 26 of Order 41 C. P. C. and to applications for revision. These documents alone are required to be accompanied by a report of the Stamp Reporter. My attention was also invited in this connection to Rule 6 of the same Chapter but ones again it has no application to the present farts. This rule lays down the procedure to be adopted in cases of insufficiently stamped documents when they are found on the record of any first appeal received by this Court under Rule 5. It further appears to me that none of the rules makes it obligatory on this Court to ask the report of the stampreporter, much less that a failure to do so will result in illegality or impropriety. The Court is certainly entitled if it so desires or considers appropriate to obtain the stamp reporter's report but it is not bound to do so. As a matter of fact the practice also in this Court is that petitions under Article 226 of the Constitution are not presented to the stamp reporter for his report. They are directly made to the Hon'ble Judge or the Bench authorised to receive them.
17. It will, therefore, appear that the success of the preliminary objection also is dependent on the answer whether a petition under Article 226 is chargeable with, court-fees under Ch. II of the Court-fees Act.
18. I, therefore, turn now to consider the question, i. e., whether a petition under the above Article of the Constitution can by any means be said to come before this Court under Section 4 of the Court-fees Act. This section is applicable to cases coming before it in the exercise of its extraordinary original civil jurisdiction or its extraordinary original criminal jurisdiction or in exercise o its appellate or revision jurisdiction or as a court of reference. The section is not attracted in a case coming before the Court in the exercise of its ordinary original civil jurisdiction, to a few of which Section 3 is applicable. But even this section, i. e., Section 3 does not apply to cases coming before the Court in the exercise of its jurisdiction under Article 226 of the Constitution. The learned Standing Counsel does not contest the proposition that a case belonging to the Ordinary Original Jurisdiction of the Court is not affected by Section 4. What however, is contended is that a case arising out of a petition under Article 226 of the Constitution comes before the Court not in the exercise of its Ordinary Original Jurisdiction but of its extraordinary original civil jurisdiction. With that assumption he has urged that Section 4 will be applicable to it by virtue of its applicability to cases on the extraordinary original side. The petitioners dispute that a case arising on a petition presented under Article 226 of the Constitution comes before the Court in the exercise of extraordinary original jurisdiction. According to them it comes before it in the exercise of the ordinary original jurisdiction.
19. The Court-fees Act does not define the expression 'ordinary original jurisdiction' or 'extraordinary original jurisdiction'. Naturally, therefore, the Letters Patent by which the Allahabad High Court was originally established and the U. P. High Courts (Amalgamation) Order, 1948 by which the present Court was established have to be consulted. The latter has in para 7 laid down that the new High Court shall have all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, was exercisable by the High Courts. In view of it the Letters Patent by which the earstwhile High Court was established have indeed to be examined for finding the powers and the Jurisdiction of this Court. Para _9 of the Letters Patent describes the Civil jurisdiction of the earstwhile Court and likewise paras 10, 25 and 26 describe the appellate, testamentary, intestate and matrimonial jurisdictions. In the same way para 15 describes its criminal jurisdiction. Para 9 by which the civil jurisdiction was described made no mention of ordinary original jurisdiction to belong to this Court, though it provided that the Court could remove and try and determine as a court of extra-ordinary original jurisdiction any suit being or falling within the jurisdiction of any court subject to its superintendence. The necessary implication of the above provisionwas that the original jurisdiction ordinarily vested in respect of those matters in the courts subject to its superintendence though the Court had power to remove and try those suits itself when it decided to proceed to try any such suit by so removing before it the trial was held in the exercise of extra-ordinary original jurisdiction. One clear distinction which, therefore, distinguished extraordinary original jurisdiction was that the jurisdiction to try the particular case vested in a subordinate court but it was exercisable by removing it on its file and then trying it. In other words a proceeding under the extraordinary original jurisdiction must be upon a case instituted and pending before another court and not upon a case which is commenced and can be commenced in the High Court itself.
20. On the criminal side the Letters Patent made no provision for the exercise of ordinary criminal jurisdiction except in respect of certain categories of persons, which, however, is no longer relevant. On this side too, therefore, the jurisdiction exercisable by the earstwhile High Court was, as regards of holding of original trials, extraordinary original jurisdiction. Ordinary original jurisdiction did not belong to it except for the limited cases referred to above.
21. From the above provisions it was, to my mind, clear that the extraordinary original jurisdiction which vested in the earstwhile Court and was in 1948 continued in the New High Court is essentially a jurisdiction exercisable in respect of cases which are not commenced before it but are actually done so in subordinate courts. It is a jurisdiction which in order that it may be exercised require the removing of the case from the subordinate courts and then trying it. Any case which under the law has to be commenced initially too in the High Court is tried by it in the exercise of its ordinary original jurisdiction. The existence of a subordinate court of competent jurisdiction to try the matter is necessary for judging, even though the trial held in this Court is a original trial that the jurisdiction which is exercised by this Court is extraordinary original jurisdiction.
22. Bearing the above distinction in mind the High Court's jurisdiction to issue writs and directions under Article 226 of the Constitution is a case coming before it in the exercise of ordinary original jurisdiction. These proceedings cannot be commenced in any court within this State except the High Court itself. Any question of removing them from any subordinate court cannot arise. They have to be instituted in this Court and are tried here. I aim consequently of the view that cases under the said Article of Constitution do not fall within the scope of Section 4 of the Court-fees Act which does not relate to matters coming before this Court in the exercise of ordinary original jurisdiction. In the case of State of U. P. v. Mahendra Pratap : AIR1956All585 , the question arose in connection with a special appeal from the judgment of a single Judge whether the time occupied in obtaining the copy of the formal order that it prepared in pursuance of it can be excluded in computing the period of limitation prescribed for an appeal. The learned Judges held that such period was able to be excluded and observed with reference to the proceeding commenced before them that :
'The petition was filed in the present case in this Court in the exercise of its ordinary original civil jurisdiction. Under the Letters Patent ordinary original civil jurisdiction was confined to Probate, matrimonial and company matters. When the Letters Patent were abolished this jurisdiction was preserved by Clause (9) of the U. P. High Courts (Amalgamation) Order, 1948.
When the Constitution came into force a special jurisdiction was conferred on this Court by Article 226 to entertain writs. From that date the ordinary original civil jurisdiction was further extended so as to include the hearing of writs.'
23. The learned Judges accordingly held that proceedings started in this Court upon a petition under Article 226 of the Constitution are in the exercise of its ordinary original civil jurisdiction.
24. In the case of Ramayya v. State of Madras, AIR 1952 Mad 300, it was again held that the jurisdiction of the High Court under Article 226 of the Constitution was in the nature of its ordinary original civil jurisdiction.
25. The exact nature of the jurisdiction exercisable under Article 226 came up for consideration in Budge Budge Municipality v. Mongru Mia : AIR1953Cal433 . It was pointed out in that case that Article 226 empowered the High Courts 'to give relief in a new form and in accordance with a more direct procedure.' In other words the High Courts were vested with a new remedy which in the past had to be redressed in other ways. The learned Judges further held in this case referring to the argument advanced before them that the jurisdiction under Article 225 was revisional, following the observation of the Privy Council in Hamid Hasan v. Banwarilal Roy AIR 1947 PC 90, that
'The issue of high prerogative writs was exercise of original jurisdiction. The writs contemplated by Article 226 are of the same nature and it is also clear that whatever may be the nature of the jurisdiction involved in the issue of the writs, the same will be the nature of the jurisdiction as respects the issue of directions or orders. In England also, the issue of the prerogative writs is treated as a matter of original jurisdiction (Halsbury, Hailsham Edition Vol. 9 page 701). It is, however, not original in the case of the Presidency High Courts, in the limited and technical sense of the ordinary original civil jurisdiction of the Letters Patent which carries certain territorial limits, but it is original as distinguished from appellate. The jurisdiction cannot be revisional, because it is not concerned With revising any order of a Court subordinate to the High Court, as contemplated by Section 115, Civil P. C., nor does it appertain to the general power of superintendence conferred by Section 107, Government of India Act, now Article 227.'
26. On behalf of the State reliance, however, was placed on the decision of Andhra Pradesh reported in Satyanarayanamurti v. Income-tax Appellate Tribunal, '(S) AIR 1957 Andh. Era. 123. This was a case directed against a certain order passed by the Income-tax Tribunal situate at Telangana in the earstwhile State of Hyderabad. The question arose as to the amount of fee payable on a petition under Article 226 and one of the points which arose for decision was whether the jurisdiction in respect of it was ordinary original jurisdiction or extraordinary original jurisdiction. We are familiar with the fact that prior to the Constitution the High Courts at Madras, Bombay and Calcutta alone possessed ordinary original jurisdiction which was exercisable within certain limited territories. Telangana was admittedly situated beyond those territories. It was contended that the ordinary original jurisdiction was not exercisable outside those territories. It was in this context that the learned Judge observed that the jurisdiction of the Court under Article 226 was in the nature of extraordinary original jurisdiction. I do not think it can be accepted as authority in support of the proposition that the jurisdictionexercised by this Court while hearing petitions under Article 226 of the Constitution is extraordinary original jurisdiction in the sense that expression has been used in Section 4 of the Court-fees Act 1870. The expression 'extraordinary original jurisdiction' found in this section has been used as explained above and not in the sense in which it was upheld in the Andhra Pradesh case.
27. From the above discussion it was clear that the jurisdiction belonging to this Court by virtue of Article 226 is ordinary original jurisdiction; consequently the cases coming before it under that Article are in the exercise of that jurisdiction. Section 4 of the Court-fees Act which docs not apply to cases coming before the Court in the exercise of that jurisdiction will not avail the State in requiring court-fee to be charged on these petitions.
28. The next question is whether Rule 40 of the Rules of Court has made court-fee to be chargeable. Having found that Section 4 does not make provision for charging of fee in the exercise of ordinary original jurisdiction, it does so for cases coming before it under extraordinary original jurisdiction -- a case upon a petition under Article 226 of the Constitution cannot come before it under that section. Since the above rule has only provided that the court-fee to he paid in the exercise of original jurisdiction would he that payable in similar classes of cases under Section 4 of the Court-fees Act, it is incumbent before any fee can be made payable under its provisions that some fee is payable on a similar case which can come before this Court under Section 4 of the Court-fees Act. If, however, a similar case cannot come before this Court under that section this rule will not help in charging any fee on these documents. It has already been noticed above that a case under Article 226 of the Constitution cannot come before the Court in any of the jurisdictions referred to in Section 4. The condition contemplated by the rule is thus not fulfilled.
29. It was, however, contended that the State (Legislature has by amending Schedule II made specific provision with regard to cases under Article 226; therefore, a case under Article 226 can be said to come under Section 4 of the Court-fees Act. I do not think this argument is correct. As earlier pointed out this Schedule contains a description only of the documents and the rate at which fee may be charged on them. The liability for the court-fee to be charged arises not under the Schedule but under substantive provision contained in Section 4, the Schedule can be of use to support the above contention only if Section 4 also provided fee to be charged in the exercise of the particular class of jurisdiction in which such cases actually come before it.
30. There is another difficulty too in accepting this contention. The powers and jurisdiction of this Court are contained in Articles 225, 226 227 and 228 of the Constitution. Rule 40 itself has been made in exercise of its power under Article 255. At the time when this rule was made Schedule II of the Court Fees Act did not contain the present provision prescribing fee to be charged on petitions under Article 226. The question may, therefore, arise whether the above amendment has enlarged the scope of Rule 40 in which admittedly no corresponding change has been made. The important facts in this connection are that the rule making power belongs to this Court. The State Legislature does not possess that power though the jurisdiction under Section 225 is subject to any law made by the appropriate Legislature. For declaring the liability to pay court-fee under Rule 40, the liability must be judged from the provisions of the rule itself. The rule however, does not contain such a provision, and Section 4, Court Fees Act, by virtue of which such a provision can be said to exist in it has been found not to be helpful in that respect. Once again, therefore, I am of the opinion that Rule 40 does not impose any liability for enhanced fees to be charged.
31. It followed from the foregoing discussion that the Court Fees Act despite the amendment made by the U. P. Court Fees (Second Amendment) Act, 1958 does not render petitions under Article 226 of the Constitution to be chargeable with the fee of Rs. 50/-, they are, on the other hand, chargeable with a fee of Rs. 5/-. In view of it the question as respects the vires of the amending Act is not necessary to be considered.
32. This petition may be listed for admission after the deficiency, if any, has been made good in the light of this order.
(In the absence of Tandon J., the judgment waspronounced under Sub-rule (3) of Rule 1 of Ch. VII ofthe Rules of Court, by Verma, J.).