- (1.) The petitioner prays for a declaration that Section 12 read with Item 10 of Schedule I of the West Bengal Court fees Act, 1970 is ultra vires Article 14 to the extent of the requirement therein for levy of any Court fees in excess of Rs. 10,000/- in any probate case or any contentious cause arising out of a probate case as the same 19 discriminatory.
(2.) The petitioner submits that since the upper limit in a suit is Rs. 10,000/- the upper limit should not be different in a will case, like a contentious probate matter, where the propounder is opposed after issuance of citation.
(3.) Mr. Murarka appearing for the writ petition has relied upon a Supreme Court decision in the case of P.M. Ashwathanaravana Setty v. State of Karnataka reported in AIR 1989 SC 100 and has placed before me paragraph 36 of the said judgment which is quoted below:- In Re : Contention (d) In the appeal of the State of Maharashtra arising out of the Bombay Court-fees Act, 1959, the High Court has struck down the impugned provisions on the ground that the levy of Court-fee on proceedings for grant of probate and letters of administration ad valorem without the upper limit prescribed for all other litigants-the Court-fee in the present case amounts to Rs. 6,14,814/- is discriminatory. The High Court has also held that, there is no intelligible or rational differentia between the two class of litigations and that having regard to the fact that what is recovered is a fee, the purported classification has no rational nexus to the object. The argument was noticed by the learned single Judge thus : "Petitioners next contend that the impugned clause discriminates as between different types of suitors and that there is no justification for this discrimination. Plaintiffs who go to Civil Courts claiming decrees are not required to pay Court-fees in excess of Rs. 15,000/-. This is irrespective of the amounts claimed over and above Rs. 15 lacs. As against this, persons claiming probates have no such relief in the form of an upper limit to fee payable". This contention was accepted by the learned single Judge who has upheld the appeal. Indeed, where a proceeding for grant of probate and letters of administration becomes a contentious matter, it is registered as a suit and proceeded with accordingly. If in respect of all other suits of whatever nature and complexity an upper limit of Rs. 15,000/- on the Court-fee is fixed, there is no logical justification for singling out this proceeding for an ad valorem impost without the benefit of some upper limit prescribed by the same statute respecting ail other litigants. Neither before the High Court nor before us here was the impost sought to be supported or justified as something other than a mere fee, levy of which is otherwise within the State's power or as separate 'fee' for another distinct source. It is purported to be collected and sought to be justified only as Court-fee and nothing else. The discrimination brought about by the statute, in our opinion, fails to pass the Constitutional muster as rightly printed out by the. High Court. The High Court, in our opinion rightly, held:- "There is no answer to this contention, except that the legislature has not thought it fit to grant relief to the seekers of probates, where as plaintiffs in civil suits were thought deserving of such an upper limit. The discrimination is a piece of class legislation prohibited by the guarantee of equal protection of laws embodied in Art. 14 of the Constitution. On this ground also item 10 cannot be sustained". We approve this reasoning of the High Court and the decision of the High Court is sustained on this ground alone, In view of this any other ground urged against the constitutionality of the levy is unnecessary to be examined. Contention (d) is accordingly held an answer against the appellant and the appeals preferred by the State of Maharashtra are liable to be and are hereby dismissed".;