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1961 DIGILAW 380 (ALL)

Jagmander Dass v. Trilok Chand

1961-12-05

V.G.OAK

body1961
JUDGMENT V.G. Oak, J. - This reference under Section 5, Court Fees Act raises the question of constitutionality of U.P. Ordinance No. II of 1960. 2. Jagmander Dass and three others filed a suit against Tirlok Chand and two others for possession over certain property. That was suit No. 26 of 1958. For purposes of court fee, the suit was valued at Rs. 3,000. A sum of Rs. 332-15-0 was paid on the plaint as court fee. The suit was dismissed by the learned IInd Civil Judge, Meerut on 21-5-60. 3. On 6-10-1960, the plaintiffs presented an appeal to this Court against the Judgment and decree of the learned Civil Judge, Meerut. For purposes of court-fee, the value of the appeal is Rs. 3,000. The appellants paid Rs. 332.50 as court fee in appeal. The Taxing Officer has reported that, the court fee now payable is Rs. 417.50, and not Rs. 332.50. The Taxing Officer relied upon U.P. Ordinance No. II of 1960. 4. The Court Fees Act is Central Act No. VII of 1870. Schedules "1" and "2" in the Court Fees Act (hereinafter referred to as the Act) specify the rates at which court fee is to be charged in suits of different kinds. Some of the provisions of the Act were altered by the U.P. Court Fees (Second Amendment) Act 1958 (U.P. Act No. XLIV of 1958). In particular, the Amendment Act enhances the rates of court fee given in schedules "1" and "2" to the Act. The Court fee paid by the plaintiff-appellants on the plaint and on the memorandum of appeal is in accordance with the schedule "1", as it stood before the amendment made by U.P. Act No. 44 of 1958. 5. U.P. Ordinance No. II of 1960 was promulgated by the Governor of Uttar Pradesh on 28-11-1960. Sec. 37 was added in the Act by Section 2 of the Ordinance. Sec. 2 of the Ordinance runs thus: "Addition of Section 37 to Act No. VII of 1870 - After Section 36 of the Court Fees Act 1870 as amended from time to time in its application to Uttar Pradesh, the following shall be, and be always deemed to have been, added as a new Sec. 37: "37. Sec. 2 of the Ordinance runs thus: "Addition of Section 37 to Act No. VII of 1870 - After Section 36 of the Court Fees Act 1870 as amended from time to time in its application to Uttar Pradesh, the following shall be, and be always deemed to have been, added as a new Sec. 37: "37. All fees shall be charged and collected under this Act at the rate indicated in the First or Second Schedule to this Act, as the case may be on the date on which the document chargeable to the court fee is or was presented." 6. On examining schedule "1" in the Act as it existed before the amendment introduced by U.P. Act No. XLIV of 1958, we find that the court fee according to the original schedule "1" was Rs. 332.50; whereas the court fee payable according to the amended schedule is Rs. 417.50. The question is whether the appellants had to pay court fee according to the old schedule, or according to the new schedule. 7. It has held that, right of appeal is a substantive right. Similarly, right to file an appeal on payment of a certain court fee is also a substantive right. There was no indication in U.P. Act No. 44 of 1958 that it would have retrospective effect. We may therefore, assume that, but for Ordinance No. II of 1960, the court fee payable on the memorandum of appeal would have been Rs. 332.50. The question, however, arises whether, in view of Section 2 of U.P. Ordinance No. II of 1960, the appellant have to pay court fee according to the Ist Schedult as amended by U.P. Act No. XLIV of 1958. 8. Sec. 2 of Ordinance No. II of 1960 contains the important words "and be always deemed to have been." These words give a clear indication that, the legislature intended to give retrospective effect to Section 2 of the Ordinance. If retrospective effect is given to Section 2 of Ordinance No. II of 1960, it would mean that Section 37 of the Act shall be deemed to have been on the statute book on 6-10-1960, when the appeal was filed. So the court fee payable in appeal was according to the First Schedule, as amended by U.P. Act No. XLIV of 1958. 9. This position was not disputed by Mr. Shanti Bhushan appearing for the appellants. So the court fee payable in appeal was according to the First Schedule, as amended by U.P. Act No. XLIV of 1958. 9. This position was not disputed by Mr. Shanti Bhushan appearing for the appellants. But he contended that U.P. Ordinance No. II of 1960 is unconstitutional, in so far as it purports to give retrospective effect to the insertion of Section 37 in the principal Act. Mr. Shanti Bhushan pointed out that, the appeal was filed on 6-10-1960. Proper court fee (Rs. 332.50) was paid on the memorandum of appeal, according to the law as it stood then. Ordinance No. II of 1960 was promulgated subsequently (28-11-1960). It was contended for the appellants that, it is not permissible to require the appellants to pay extra court fee on appeal, when they have properly filed an appeal after paying the prescribed court fee. 10. The mere fact that the Ordinance affects substantive right is not a good ground for questioning the validity of the Ordinance. It is settled law that the Legislature is competent to affect substantive rights. It is also settled law that, the Legislature is competent to legislate with retrospective effect. So neither of these considerations touches the validity of Section 2 of Ordinance No. II of 1960. 11. Mr. Shanti Bhushan, however, contended that, Sec. 2 of the Ordinance is unconstitutional, because the legislation affects the appellants' fundamental right to hold property guaranteed by sub-Cl. (f) of Cl. (1) of Article 19 of the Constitution. Sub-Cl. (f) of Cl. (1) of Article 19 is subject to the provisions contained in Cl. (5) of Article 19. Under Cl. (5) of Article 19, it is permissible to impose reasonable restrictions on the exercise of the rights guaranteed by sub-Cl. (1) of Cl. (1) of Article 19. We have, therefore, to consider whether the impugned legislation imposes reasonable restriction on rights of property. 12. Mr. Shanti Bhushan did not suggest that, imposition of court fee is by itself unreasonable restriction. All that he contended was that, a demand of additional court fee after the filing of an appeal on prescribed court fee is unreasonable. The appeal was filed by the appellants upon payment of Rs. 332.50 as court fee. An additional sum of Rs. 85 is being demanded from the appellants as court fee. All that he contended was that, a demand of additional court fee after the filing of an appeal on prescribed court fee is unreasonable. The appeal was filed by the appellants upon payment of Rs. 332.50 as court fee. An additional sum of Rs. 85 is being demanded from the appellants as court fee. It is difficult to see how a mere demand of additional court-fee can be condemned as unreasonable. Mr. Shanti Bhushan contended that the appeal having been properly filed on 6-10-1960, the appellants cannot be compelled to pay the additional sum of Rs. 85. No element of compulsion is involved in the present situation. It is for the appellants to decide whether they would like to pay the additional court fee, as required by Ordinance No. II of 1960. There are two alternatives before the appellants. Either they may pay up the additional court fee of Rs. 85, and proceed with the appeal. Or they may abandon the appeal altogether. No one is going to compel the appellants to pay the additional court fee of Rs. 85. 13. There is another consideration. Mr. Shanti Bhushan is right in his contention that, the court fee was correctly paid, according to the law as it stood on 6-10-1960. It may be that the appellants are not in a position to pay the additional sum of Rs. 85. In that case, it would be open to the appellants to abandon the appeal, and request the court for a refund of the court fee already paid. In the present reference, I am not deciding whether the appellants would he entitled to obtain refund of the court fee as a matter of right. I am merely indicating the possibility of applying for refund of court fee. Under certain circumstances, courts allow refund of court fee under inherent powers of the Court. The fact that the Ordinance was promulgated after the filing of the appeal would perhaps be an important consideration for deciding whether refund of court fee should be allowed to the present appellants. 14. On any view of the matter, I am not persuaded that the promulgation of Ordinance No. II of 1960 with retrospective effect places any unreasonable restriction on right of property. In my opinion, the Ordinance is protected by CI. (5) of Article 19 of the Constitution. 14. On any view of the matter, I am not persuaded that the promulgation of Ordinance No. II of 1960 with retrospective effect places any unreasonable restriction on right of property. In my opinion, the Ordinance is protected by CI. (5) of Article 19 of the Constitution. I am unable to accept the contention that, Sec. 2 of Ordinance No. II of 1960 is partly unconstitutional. I hold that Section 2 of Ordinance No. II of 1960 is wholly valid. 15. I, therefore, accept the office report to the effect that, the appellants have to pay a total court fee amounting to Rs. 417.50 on the memorandum of appeal. The appellants are allowed one month to pay up the deficit court fee.