- (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 this State. One of the changes effected is in Sch. II. Clause (e) of Art. 1 of Sch. II of the Act, as it was prior to the Amendment Act and as it is now, reads as under : JUDGEMENT_177_TLALL0_1959.htm According to the amended version which has for the first time included a provision of court -fee to be payable on a petition under Art. 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 Cl. (e) of Art. 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. 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 S. 49 of the Indian Divorce Act. (3) Caveat. (4) Petition in a suit under the Native Converts 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 S. 3 is that all those proceedings are original in nature. They are initiated directly in the High Court itself. In this aspect of S. 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 Art. 226 of the Constitution.
(3.) 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." ;