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Shamshul Hasan Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 21 of 1955
Judge
Reported inAIR1956All413
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 344; Constitution of India - Article 14; Uttar Pradesh Zamindari Abolition and Land Reforms Rules - Rule 61; Uttar Pradesh General Clauses Act, 1904 - Sections 6; Court-fees Act, 1870 - Sections 1
AppellantShamshul Hasan
RespondentState of Uttar Pradesh
Appellant AdvocateP.M.L. Verma, Adv.
Respondent AdvocateN.D. Pant, Junior Standing Counsel
Excerpt:
.....acts and future acts - for the purposes of giving effect to a statute - reasonable classification - an amendment of an enactment is nothing but repeal of an enactment followed immediately by re-enactment with modification. - - but on 16-11-1954, after the judgment under appeal was pronounced, the rule was amended and 'ad valorem' court-fee at 2 per cent, on the value of the subject-matter in appeal was provided for an appeal like the present one. 54/4/-.the appellant is allowed a fortnight to make good the deficiency......was preferred. i am of the view that in the absence of an express provision to the contrary the rule in force at the time when it is sought to be applied must be applied.the question of the court-fee payable on the memorandum of appeal arose for the first time when the memorandum of appeal was filed and at that time the amended rule was in force. therefore, the memorandum of appeal ought to have borne the court-fee stamp of rs. 58/-. on the day on which the cause of action was commenced there might have arisen a question of the court-fee payable on the plaint or the application but certainly not of the court-fee payable on a memorandum of appeal.the plaintiff or the applicant might have had a vested right of appeal on that date but it does not follow that the question of the court-fee.....
Judgment:

Desai, J.

1. The question before me is of the court-fee payable on the memorandum of appeal. The appeal has been filed under the proviso to Section 50, U. P. Zamindari Abolition and Land Reforms Act from a decree of a compensation officer dated 9-10-1954, Under Section 344 of the Act the Government has the power to make rules providing for the court-fees payable in respect of appeals under the Act.

On 30-6-1952 the State Government made rules which were published and placed before the Legislature on 9th and 10th July 1952 as required under the section. Rule 61 of the Rules, as originally framed, laid down that 'ad valorem' court-fee was payable on appeals to the High Court under Sections 51 and 58 and to the District. Judge under Sections 50 and 57 and that in other cases the court-fee pay-able was as on an appeal from an order under the Court-fees Act.

The court-fee payable on a memorandum of appeal from an order is Rs. 3/12/-. Since the present appeal is neither under Section 51 nor under Section 58 but under Section 50, the court-fee of Rs. 3/12/-was payable on it if the rule as originally framed applied. But on 16-11-1954, after the judgment under appeal was pronounced, the rule was amended and 'ad valorem' court-fee at 2 per cent, on the value of the subject-matter in appeal was provided for an appeal like the present one. This appeal was presented on 12-1-1955, but the memorandum of appeal was stamped with a court-fee of Rs. 3/12/- only.

On the value of the subject-matter in appeal the court-fee payable under the amended rule is Rs. 58/-. The Taxing Officer being of the view that the appellant should have paid the court-fee in accordance with the amended rule reported a deficiency of Rs. 54/4/-. But considering the question of general importance he has referred the matter to the Court for final decision under Section 5, Court-fees Act.

2. Sri P. M. Verma, counsel for the appellant, raised some preliminary objections. One is that the rule cannot be amended by the State Government. The Constitution came into force on 26-1-1950 and the Zamindari Abolition and Land Reforms Act was passed by the provisional legislature on 16-1-1951 and came into effect on 26-1-1951.

The provisional legislature became defunct on 9-5-1952 and a newly elected legislature came into existence in its place. It was contended that the power conferred by the Act upon the State Government to make rules came to an end when the provisional legislature that had passed the Act became defunct.

The power conferred on the State Government to make rules is to be exercised at all times and is not dependent upon the existence of the legislature passing the Act. No legislature is permanent and legislatures go on changing but that does not affect the operation of the Acts passed by them.

3. Under Section 344 of the Act the Rules have to be laid down before the legislature and the legislature has power to amend them; taut it does not mean that so long as they are not laid before the legislature they are not in operation. They come into operation as soon as they are made and published.

The amendment of the rule has been gazetted. It must be presumed that the amendment was placed before the legislature as required under Section 344; it was not at all necessary for the fact to be published in a gazette.

4. Another ground is that the amendment is void under Article 14 of the Constitution. The argument is that the amendment makes an arbitrary distinction between an appeal filed from a judgment prior to 20-11-1954 which would be liable to be stamped with court-fee of Rs. 3/12- only and an appeal from the same judgment filed after 20-11-1954 when it would be liable to be stamped with court-fee of Rs. 58/-.

If the amendment had been given retrospective effect so as to govern appeals filed before but pending on the date on which the amendment came into force, this objection could not be raised. Therefore the objection in essence is against the amendment not being given retrospective effect.

No law is rendered unconstitutional simply because it does not purport to be retrospective. The division of acts into past acts and future acts for the purposes of giving effect to a statute is a reasonable classification. If a statute is made applicable only to future acts, the distinction between future acts and past acts is not unreasonable or arbitrary.

It is reasonable to make a statute prospectiveand not retrospective. In -- 'Rao Shiv BahadurSingh v. State of Vindhya Pradesh', 1953 SC 394(AIR V 40) at P. 397 (A), it was observed byJagannadha Das J., that

'There is no reason why pending proceedings cannot be treated by the legislature as a class by themselves having regard to the exigencies of the situation which such pendency itself calls for.'

Therefore the amendment does not contravene the guarantee of equality before the law.

5. Coming to the most important question whether the question of court-fee payable on thememorandum of appeal is governed by the old rule which was in force when the action was commenced or, by the amended rule which was in force when the appeal was preferred. I am of the view that in the absence of an express provision to the contrary the rule in force at the time when it is sought to be applied must be applied.

The question of the Court-fee payable on the memorandum of appeal arose for the first time when the memorandum of appeal was filed and at that time the amended rule was in force. Therefore, the memorandum of appeal ought to have borne the court-fee stamp of Rs. 58/-. On the day on which the cause of action was commenced there might have arisen a question of the court-fee payable on the plaint or the application but certainly not of the court-fee payable on a memorandum of appeal.

The plaintiff or the applicant might have had a vested right of appeal on that date but it does not follow that the question of the court-fee payable on a memorandum of appeal had arisen for decision on that date or must be deemed to have arisen on that date. The old rule was no longer in force on the date on which the appeal was presented and could not be considered in deciding the court-fee payable on the memorandum.

6. In the present case the law regarding the court-fee payable was in the form of a rule made by the State Government in exercise of the power conferred by a Statute. Section 6, U. P. General Clauses Act lays down the effect of repeal of an enactment by another; there is no similar law laying down the effect of repeal of a rule by another rule. There is no reason for applying a different law to repeal of a rule by another rule and the analogy of Section 6 should be applied.

7. Under Section 6, U. P. General Clauses Act repeal of an enactment by another does not revive anything not in force or existing at the time of the repeal, or affect the previous operation of the repealed enactment or anything duly done or suffered thereunder, or affect any right or privilege acquired under the repealed enactment.

An amendment of an enactment is nothing but repeal of an enactment followed immediately by re-enactment with modification. When a Court-fees Act is amended, the amendment does not revive anything not in force or existing at the time of the amendment. It must not affect the previous operation of the original Act; this only means that the court-fee that has been paid correctly according to the original Act must not be held to be insufficient because the amendment Act enhances the court-fee.

But if no court-fee has been paid yet, the old Act cannot be said to have been put into operation and the question of the court-fee payable arising after the amendment is not required to be answered by reference to the original Act. If the appellant had preferred the appeal before 20-11-1954 and paid Rs. 3/12/- as court-fee, he could not be required after 20-11-1954 to pay Rs. 54/47 more. The appellant cannot be said to have acquired any right or privilege under the original Court-fees Act.

A Court-fees Act prescribes what court-fee is payable on a plaint or an application or a memorandum of appeal, when the plaint or application on appeal is filed. It confers upon a plaintiff or an applicant a right to file a plaint or an application bearing a certain amount of court-fee but does not confer upon him the further right of appealing from a judgment or order passed on the plaint or application bearing a certain amount of court-fee.

On the date on which the appellant commenced the action he had a right to file the plaint bearing a certain amount of court-fee but had not been given any right by any statute to file an appeal bearing a certain amount of court-fee; what should be the court-fee Payable on the memorandum of appeal was left to be determined on the date on which the question would arise.

On the date on which he commenced the action he could have filed an appeal with a memorandum bearing court-fee of Rs. 3/12/- but no right was conferred upon him to file an appeal with such a memorandum on a later date. When he had no right to file an appeal in future with a memorandum bearing Rs. 3/12A as court-fee, the amendment Act cannot be said to take away the right.

I find that Section 6 does not require the question of court-fee payable on a memorandum of appeal to be decided in accordance with the statute in force when the action was commenced. It follows that the amending statute must be applied.

8. Sri P. M. Verma relied on -- 'Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh', 1953 SC 221 (AIR V 40) (B), but in that case the right to appeal itself was curtailed. In the present case the right to appeal is not at all curtailed or affected by the amendment of Rule 61. The right is conferred by Section 59 of the Zamindari Abolition and Land Reforms Act which remains intact.

It is another provision prescribing the amount of court-fee payable that is amended. The appellant had a vested right to file an appeal but that right is not curtailed by requiring him to pay a higher court-fee. The law of court-fees simply regulates the exercise of the right conferred upon a litigant; such a law can be amended.

9. In the view that I take I am supported by'In re, Ghosh Beevi', 1944 Mad 406 (AIR V 31) (C), and -- 'Sham Lal v. Om Prakash', 1955 Punj 223 ( (S) AIR V 42) (D). I respectfully differ from -- 'Sawaldas Madhavdas v. Arati Cotton Mills Ltd', 1955 Bom 332 ((S) AIR V 42) (E), and-- 'Eswaramma v. Seethamma', 1955 Andhra 221 ( (S) AIR V 42) (FB) (F).(10) The court-fee payable on the memorandum of appeal is Rs. 58/- and there is a deficiencyof Rs. 54/4/-. The appellant is allowed a fortnight to make good the deficiency.


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