1. The former employees of the Madras Electric Tramways Ltd., in liquidation, claiming to represent themselves and all the other former workmen of the company numbering some 1611 persons, sought leave to file a suit in 'forma pauperis to obtain various reliefs against the receivers appointed by the trustees of the mortgagee debenture holders of the company.
2. Now, it has been held in this court that a representative suit cannot be filed in forma pau-peris unless all the persons sought to be represented are without the means to pay the prescribed court-fee. I take it that It must have been difficult to prove that every one of the 1613 persons, for whose benefit the suit is sought to be filed, is so circumstanced. So the secretary of the Madras Electric Tramway Workers' Association appears to have invoked the assistance of the State Government and on 23-3-1956 the Government issued the following notification:
"In exercise of the powers conferred by Section 73 of the Madras Court-fees and Suits Valuation Act, 1955 (Madras Act XIV of 1955), the Governor of Madras hereby remits all the fees chargeable un der the said Act, on any plaint, application or other legal proceedings, on vakalatnama and on process that may be filed or taken in a civil court by or on behalf of any former workman or work men of the Madras Electric Tramways Ltd., for the recovery of the amounts due under the award passed by the Special Industrial Tribunal, Mad- ras, as modified by the Labour Appellate Tribunal of India."
3. When a copy of this notification was placed before me I entertained doubts about its validaty, and so, on. 10-4-1956, I directed the office to number the plaint provisionally subject to the question being fully argued and decided later. It was also made clear to Mr. Mohan Kumanara-mangalam, the learned advocate for the plaintiffs, that should this question be finally decided against the plaintiffs and the requisite court-fee be not paid, the plaint would be rejected.
4. The question has since been argued.
5. One matter of subsidiary Importance may be at once disposed of. The notification, it is seen, purports to exempt the former workmen of the M. E. T. Ltd., from the payment not merely of court-fees but also or process fees. Now, process fees on the original side of this court are collect- ed not under the Court-fees Act of 1955 but under different provisions.
Section 80 of the Court-fees Act of 1955 which is the only provision in the Act applicable to process fees levied by Court does not touch, the process fees payable on the original side of this court. Clause (a) of Sub-section (1) of that section deals only with "the fees payable for serving and executing processes Issued by the High Court in its appellate jurisdiction and by the civil and criminal courts subordinate thereto." The notification in the present case has been issued under Section 73 of the Act which in terms deals with the fees chargeable under the Act.
The notification, therefore, must fail so far as it seeks to exempt the plaintiffs from the pay-merit of the Process fees to which they are liable under the law.
6. Mr. O. T. G. Nambiar, the learned ad-vocate for the receivers appointed by the trustees of the mortgagee-debenture holders raised another point. He remarked that proceeding for the moment on the assumption that the notification is vaild it can be of no assitance whatever to the plaintiffs in the action now proposed. His argument was this.
The notification exempts the former workmen of the Madras Electric Tramways Ltd., from the payment of court-fee on any plaint, application or other legal, proceedings taken in a civil court -- now come the words which are material --"for the recovery of the amounts due under the Award passed by the Special Industrial Tribunal,Madras, as modified by the Labour Appellate Tribunal of India."
The exemption has been granted only in respect of a suit instituted for the recovery of the amounts made payable by the tribunals mentioned. In the present suit there is no prayer for the recovery of any amount. The prayers of the plaintiffs are contained in paragraph 16 of the draft plaint. Their first prayer is for a judgment "declaring the right of the workmen ..... to be paid the sums due to them under the reliefs granted to them by the modified award ..... "The second prayer is for an injunction restraining the defendant from disposing of or removing from the jurisdiction of this court certain moneys.
The third prayer is for costs. There is no prayer for the recovery of any amount from any person. The objection is not merely technical because it cannot be got over by amending the plaint. If the plaintiffs now seek to amend the plaint by adding a prayer that the workmen concerned be paid various amounts, then they would be up against the difficulty that they cannot have a single suit. Every person affected must file a separate suit 'for the amount which he claims is due to him. This objection is probably very sound.
7. However since an attempt may be made to amend the plaint to obtain the benefit of the notification the further question must be considered how far is the notification valid.
8. Court-fees in this State are now collect-ed on the strength of an enactment made by the local legislature and numbered as Act XIV of 1955. Section 4 of the Act provides that no document which is chargeable with fee under the Act shall be filed or exhibited or recorded or acted on in a court unless the appropriate fee has been paid. There is a proviso relating to criminal courts, which is not of present interest.
Then follow various sections directing how the fees shall be computed in the various categories of cases dealt with by the Act. Chapter VII which contains Sections 66 to 73 deals with refunds and remissions and exemptions. In Section 72 the Legislature has enumerated twenty different types of instruments which are exempt from the payment of any fee. Then follows Section 73 which empowers the State Government to reduce or remit fees in certain cases. That section runs as follows:
"The State Government may, by notification in the Fort St. George Gazette, reduce or remit, in the whole or in any part of the territory of this State, all or any of the fees chargeable under this Act and may, in like manner, cancel or vary such notification."
It will be seen that this section empowers the Government to reduce or remit the fees payable, in the whole of the State or any part of the State. That power may be exercised in relation to all the fees chargeable under the Act or any of the fees chargeable under the Act. That is to say, under this section, the Govenment can remit or reduce the fees payable on every class of instrument throughout the whole of the State.
Similarly they can reduce or remit the fess payable on every class of instrument over certain portions or areas of the State. Likewise they can remit or reduce the fees payable on certain types of instrument either in the whole of the State or part of the State. But, as I read the section it doss not empower Government to remit the fees payable by a particular individual in a particular case.
Section 73 of Madras Act XIV of 1955 is a copy of Section 35 of the Court-fees Act of 1870 with only one variation which is now material. Some of the notifications issued under the old Act have been collected in the Guide to the Law of Court-, fees, Madras, by Krishnamurthi and Mathrubhu-tham. Those exemptions are all of them general in character, and, I have not been shown a single case under the old Act in which Government sought to exempt a particular individual in a particular case from liability to pay the fees under the Act.
9. Mr. Mohan Kumaramangalam handed to me copies of two notifications issued by the Government of Madras under Act XIV of 1955. They are G. O. Ms. No. 332, Home, dated 31-1-1950 and G. O. Ms. No. 1397 Home dated 2-7-1956. The former is general in character and applies to all individuals and does not confer a favour on any particular person. The latter deals with village officers generally and again is not in relation to an individual case.
I am not concerned to investigate whether the exemption granted therein to village officers is good or bad, it is sufficient to say that the notification deals not with any particular individual but with a category of officers.
10. Mr. Kumaramangalam argued that under Section 73 the State. Government have power to remit the fees payable by a class of people, and, that in the present case, the class is the class of ex-empolyees of the M. E. T. Ltd. There is no need here to question the correctness of the contention of Mr. Kumaramangalam that the Government can, in appropriate cases, remit the fees payable by a class of people.
For example, if a particular area is affected by drought or is damaged by cyclone or other natural visitation it may be open to Government to say that people living in that area are exempt from the payment of the fees payable under the Act in respect of all or specified matters. But, I find it difficult to see how the former employees of the M. E. T. Ltd., can be described as a class.
Every classification must be a reasonable one It must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and, the classification must not be arbitrary. If the Government had said that they exempted from the payment of court-fee all persons whose incomes are below a certain limit that would be intelligible.
If they had said that they exempted from the payment of court-fee all those who have been unemployed for a certain period that also would be understandable. If they had said that they exempted from the payment of court-fee all persons who are engaged in any hazardous enterprise that also could probably be justified. But, this is not what the Government have now done.
They exempt certain individuals because it pleases them to do so. It will be noticed that they do not exempt the ex-employees of the M. E. T from the payment of all fees payable under the Court-fees Act; they exempt them from the payment of fees payable in this particular case. I do not see how such an order can be upheld as based on any classification at all. On this basis there can be as many classes as there are individuals who please Government.
Before a classification can be upheld as reasonable and just it must be possible to discover some reasonable foundation for it. I am unable to discover any in the present case. As I read the Act, Government have no power to say that they exempt a particular individual from payment of fees in a particular case. The section does not purport to enable the Government to do that, and, if it did, its constitutional validity would be open to argument.
11. It is not difficult to visualise the situation into which one would be forced if this notification were to be held good. In this particular case Government proceed to exempt the ex-em-loyees of the M. E. T. Ltd., from paying the fees they are liable to pay under the Act. If the Government can validly do this .now they can also validly excuse from the payment of all fees chargeable under the Act individuals who profess a particular political creed or who make themselves useful to the Government or who otherwise happen to plead them.
And, the mischief may not stop with the Court-fees Act. S, 6 of the General Sales-tax Act confers power on the Government by notification to grant exemptions and reductions in respect of taxes' payable under that Act. It is probable that other fiscal statutes contain similar provisions. By exercising the powers conferred by these provisions, individuals favoured by Government can be excused from the payment of various public dues.
It may be said that such things will not be done, but I do not have that confidence. In what are called democratic forms of Government administrative processes are peculiarly susceptible to stresses issuing and influences seeping from the electoral arena. To resist them requires a strong moral fibre and that is not a common Virtue.
12. If we give thought to the matter, it will be realised that what the Government are really seeking to do is to "dispense" with the law in the case of the plaintiffs. In effect and substance the Government are telling that the plaintiffs are excused from the operation of the law in this particular case. My reading of English Constitutional history tells me that the last English King who claimed to exercise the power of "dispensing" with the law was James II, and, that after he fled from the Country, Parliament solemnly put it on record that the pretended power of the King to "dispense" with the law did not exist.
13. When we speak of the Government of a State in the Indian Union we really mean the executive authority of the State. Its powers are undoubtedly very large; but they are not without limits or boundaries. The Government of the State is an important part of the machinery set up by the Constitution, but, it is not Sovereign in any sense of the word known to Jurisprudence and it cannot dispense with the law. Time was when Rex was Lex. We now seek to say that Lex is Rex. The Government is neither Rex nor Lex.
14. In my judgment the notification is null and of no effect.
15. Time to pay court-fee, one month.