- (1.) THIS is an application of the returned candidate whose election was upheld while dismissing the opposite party's election petition with costs. While disposing of the election petition, I fixed the fee of the present applicant's counsel as Rs. one thousand. Except to the extent of quantum of counsel's fee to which the applicant might have been entitled as a part of the costs awarded in his favour, the rest of the amount of costs had to be fixed by the Registrar under Rule 27 (b) Chapter 4-GG, Vol. V of the Rules of this Court. Relevant part of Rule 27 (b) provides:- "if the costs have not been fixed by the designated Judge under clause (b) of Section 99 (1) of the Act (Representation of the People Act) the costs shall be taxed by the Registrar. . . . . . . . . . . . . " While discharging his duty under the above said rule, the Registrar informed the counsel for the applicant that he was not going to allow the applicant any amount on account of counsel's fee. The reason for adopting that course is given in the draft Memo, of Costs in the following words:- "counsel's fee. . . . . . . . . . . . . . . not taxed as the fee certificate was filed during the arguments. " On the insistence of the counsel for the applicant to have the counsel's fee included in the Memo, of Costs, the Joint Registrar put up a note dated August 1, 1973 to me for necessary orders in that respect. I passed an order on the said office note on August 2, 1973 to the effect that the application filed by the counsel for the returned candidate may be placed for Motion hearing after informing the counsel of the date fixed for the purpose. It was in pursuance of that order that this application dated July 24, 1973 was put up before me on August 14, 1973. Notice of the application was issued to the counsel for the election petitioner. The prayer made in the application is that the Memo, of Costs be amended and counsel's fee be included therein as there is neither any statutory nor any equitable rule framed under the Representation of the People Act (hereinafter referred to as 'the Act') that such fees are to be included only if a fee certificate is filed by the counsel. The application has been opposed by the learned counsel for the election petitioner.
(2.) THE relevant facts are not in dispute. No fee certificate was filed by the counsel for the respondent-applicant before the commencement of the arguments in the election petition. A fee certificate of Mr. Man Mohan Singh Librehan Advocate for the applicant showing receipt of Rupees five thousand as his fee from the returned candidate on April 16, 1973, was, however, filed before me on May 9, 1973, one day before the conclusion of the arguments of the election petitioner. Section 16 of the Bar Councils Act, 1926 provides that the High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto. The rules incorporated in part I of Chapter 6-I of Vol. V of the Rules and Orders of this Court have been adopted under Section 16 of the Indian Bar Councils Act vide High Court Notification dated January 13, 1949, Rule 16 of those Rules is in the following words:- "notwithstanding anything contained in the rules of the Court and notwithstanding any order of a Judge or Judges, no fee for the appearance of any Advocate, Vakil or Attorney shall, except as in these rules hereinafter provided be allowed on taxation between party and party, or shall be included in any decree or order unless:- (i) the Taxing Officer is satisfied that the fee was paid to the Advocate, Vakil or Attorney before the hearing ; and (ii) unless the party claiming to have such fee allowed shall, before the hearing, file in the office of the Taxing Officer, a certificate signed by the Advocate, Vakil or Attorney as the case may be, certifying the amount of the fee or fees actually paid by or on behalf of his client to him or to any other Advocate, Vakil or Attorney in whose place he may have appeared. " The proviso to that rule is not relevant for our purposes. The contents of such certificate have been prescribed in R. 17. The certificate filed by Mr. Man Mohan Singh Librehan Advocate is in the prescribed form and gives all the requisite particulars.
(3.) MR. R. S. Mittal, the learned counsel for the election petitioner, has vehemently contested this application. He has firstly argued that the application is not competent as the powers of the Court to tax costs have been delegated by Rule 27 of Chapter 4-GG Volume V to the Registrar, I do not agree with this contention as it is open to the designated Judge to give directions for taxation of costs and to deal with the objections, if any, raised during the taxation proceedings. Such power is inherent in this Court under Section 151 of the Code of Civil Procedure which has been made applicable to proceedings under the Act by operation of Section 87 of the Act. He has secondly contended that Rule 16 which requires the filing of a fee certificate before the commencement of the hearing of a case starts with a non obstante clause and must, therefore, override all other provisions. Rule 16 would no doubt override any other rule contained in the Rules and Orders framed by the High Court and would override even an order of a Judge or Judges but would not, in my opinion, override any other law for the time being in force as the non obstante clause with which that rule begins is of a restricted nature.;